Federal Pharmaceutical / Drug Diversion Lawyers

When you think about criminal cases related to drug charges, you may think about drug dealing and possession among the general population, and you likely think of “street” drugs like heroin or cocaine. However, one major form of investigation performed by the Drug Enforcement Administration (DEA) surrounds the medical professionals who interact with pharmaceuticals on a daily basis. These workers are subject to licenses and registrations that allow them to handle controlled substances and therefore must uphold legal and ethical standards in their distribution of medications.

What Is Pharmaceutical Diversion?

Also known as drug diversion, pharmaceutical diversion refers to the illegal use of prescription drug medication or fraud as a means of obtaining those drugs. Any criminal act that removes a drug from the path between a manufacturer and an intended patient is known as diversion.

While anyone can be accused of this, medical professionals are the most common perpetrators because of their unique access to medication and ability to distribute it. Because of this, healthcare workers are actually a high-risk group for drug addiction and sometimes divert drugs by writing their own prescriptions. Writing a prescription for a friend or family member is also considered diversion, as is taking that prescription as the friend or family member.

It can also be considered drug diversion to visit multiple doctors, obtaining the same prescription or a combination of prescriptions without disclosing that to each provider.

Examples of Pharmaceutical Diversion

The Georgia Drugs and Narcotics Agency provides a website for anyone to report instances of drug diversion for further investigation. While the forms of diversion possible are extensive, the GDNA offers some examples of common ways they see this occurring.

Animal to Human Diversion: Veterinarians and other animal health professionals will sometimes write prescriptions as a part of their daily practice. While they are authorized to do so, pharmacists are required to only release those medications when a veterinarian is licensed and operating normally. Any pharmacist who knowingly fills a prescription written for an animal and gives it to a human is in violation of Georgia law.
Out of State Physicians: A common tactic is to present a Georgia physician with a prescription said to have been written in another state. Patients will often provide a license or ID from that state to indicate they live there. While this is not illegal, pharmacists are encouraged to take extra steps and ensure those prescriptions have been legitimately granted before filling them.
Particular Drugs: Certain drugs are more likely to be part of drug diversion because they offer some additional “benefit” outside of normal medical use. Recently in Georgia, promethazine with codeine is a popular drug requested via fraudulent prescriptions, often in very large quantities. Any prescription that seems abnormal should be further verified by a pharmacist.
Watermark and Tamper Resistant Paper: Often, prescriptions are presented on watermark and transfer-resistant paper. Pharmacists report seeing paper that contains a red “RX” on the back, which disappears when rubbed, and some papers would produce the word “void” when photocopied. The type of paper used for a prescription should not be enough evidence to consider it valid.

Other forms of diversion include the following:

Over-prescribing medication, either by offering large doses or large quantities beyond medical guidelines.
Failing to prevent drug abuse by not properly reviewing medical records, offering pain management contracts, verifying prescriptions, or addressing substance abuse concerns.
Failing to secure prescription pads or drug storage so that patients or other employees have access to these items.

Drug Diversion Investigations and Penalties

Depending on the scenario, a drug diversion investigation can be either a state or federal level process.

A state-level investigation usually begins with an informant or an anonymous tip and is often first sent to the state’s medical licensing board, who will contact law enforcement. The individual is not always told an investigation is underway, though sometimes they will be interviewed. Depending on the findings, cases can be referred to local officials or the state Attorney General for prosecution. In severe cases, they may refer the case to federal law enforcement agencies. Even if no legal action is taken, the licensing board may have their own disciplinary process they choose to undertake.

A federal investigation is typically more intensive and is conducted by the DEA Office of Diversion Control, sometimes with the help of other agencies. Federal, state, and local law enforcement may pool their resources to share information. Undercover agents, informants, and surveillance are commonly used in these cases. They often result in raids of a medical facility.

Under the Controlled Substances Act, a conviction for drug diversion in federal court could be subject to a fine of $250,000 and 10 years in federal prison for each individual offense. State charges could be applied in addition to federal ones depending on the specifics of the violation.

Preventing Drug Diversion

Hospitals, clinics, and other facilities with prescription drugs and medical staff onsite are expected to monitor for pharmaceutical diversion and have measures in place to prevent it from occurring. In the event that diversion does occur, this can help make a case for diligence in court.

Many providers are trained specifically to identify addicts who come through their office, allowing for closer monitoring of their history. There may be an internal process for reporting suspected addicts so that all staff can treat them carefully. Anonymous reporting is important so that employees don’t feel that they will get other staff or patients in trouble.

For very at-risk facilities, a drug diversion committee can be formed or a specialist can be brought in. These steps will create monitoring and preventative steps as well as formulate plans of action if diversion does occur.

What to Do If You Are Being Investigated or Questioned

If you are involved in a diversion case, as either a defendant or an informant, it is crucial to be knowledgeable about the process and proceed carefully. Anything you say or disclose to investigators can and will be used against you in a trial.

Often investigations begin out with a friendly tone and you may be told they are simply gathering routine evidence, or they may warm you up by contacting you about another case. No matter how it begins, you should never volunteer any information to a federal agent without consulting a diversion attorney first. What may feel like an innocent answer to a routine question could be a key piece of their investigation. If you are subject to a raid, avoid speaking as much as possible. Agents are trained to provoke you to speak in order to use those statements as part of a trial.

Like with any crime, you have the right to retain an attorney prior to speaking with any law enforcement agent. Finding a seasoned attorney with experience in diversion and other federal white-collar crimes will be critical as you move forward. If possible, do not wait until formal notice of a complaint or investigation to find representation- a good lawyer will be able to take steps during the initial process to minimize your chances of fines or prison sentences.

Practice Areas

Recent Cases

United States v. S.I.: HHS-OIG investigated our client for Health Care Fraud and Aggravated Identity Theft based on the client's allegedly participating in a "telemedicine" kickback scheme that defrauded Medicare of approximately $30 million in reimbursements for not-medically-necessary durable medical equipment and genetic testing. After our having conducted our own investigation into the matter and making several presentations to the investigating agents and prosecutors, we convinced the Government not to prosecute our client.
United States v. J.P., et al.: The Department of Justice's Criminal Division, Fraud Section charged our client and nine other individuals in a $1.4 billon health care fraud and money laundering conspiracy concerning toxicology laboratories' using rural and critical-access hospitals in an alleged pass-through billing scheme. After a six-week trial, during which the DOJ presented forty-two witnesses—including cooperating, alleged co-conspirators—and over 500 exhibits, the jury deliberated for four days before failing to unanimously agree on a verdict, prompting the Court to declare a mistrial. DOJ released all of the client's seized assets at the conclusion of the case.
United States v. F.A.P., et al.: The FBI investigated and the Government indicted our client for Aiding and Abetting another person's traveling in interstate commerce with the intent to engage in illicit sexual conduct with a minor. After completing our investigation of the case, we convinced the Government to dismiss all charges against our client two weeks before the trial began.
United States v. K.J.: The US Secret Service investigated our client for Wire Fraud, Theft, and Embezzlement, based on the client's allegedly diverting over $100,000 from the client's employer's business bank accounts to the client's personal bank account. We convinced the Government not to prosecute our client.

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