New York Drug Diversion Attorneys
Drug Diversion By Physicians
At Joseph Potashnik and Associates, our defense attorneys represent physicians who have been accused of drug diversion on local and federal levels.
Drug diversion in the medical profession is a serious issue that essentially is unlawful distribution or abuse of prescription drugs.
Drug diversion can occur at every step of the way the drugs take from the manufacturer to the patient, from the initial distribution from the manufacturer to the wholesaler, from the wholesaler to the pharmacy, and from the pharmacy to the patient.
Federal law makes it illegal to distribute prescribed drugs for any reason other than their intended purpose. Any deviation from this can transform a physician into a drug dealer.
There are two types of scenarios in which physicians may be involved in drug diversion. The first situation occurs when a physician knowingly distributes or prescribes certain drugs for illicit purposes.
The second scenario is when the physician acts unknowingly. For many physicians, specifically those in pain management practices, there is often a blurred line that makes it difficult to see when a patient is a drug seeker or genuinely requires pain medication.
What Are the Most Common Types of Drug Diversion by Physicians?
One of the most egregious types of drug diversion committed by physicians and other healthcare professionals is selling prescription drugs. Many of these cases result in criminal prosecution, loss of medical license, and other penalties.
Pill mills are another common problem. Here, doctors prescribe unnecessarily large quantities of drugs.
A more common problem is prescribing controlled substances in cases the DEA considers medically unnecessary. Another common issue is physicians who abuse narcotics.
Drug Diversion and Medicaid/Medicare
Physicians involved in drug diversion, particularly in illicit prescription of drugs may be submitting false statements and making false claims to government programs such as Medicaid and Medicare. This can and does result not only in criminal charges brought against the physicians but also permanent exclusion from Medicaid and Medicare.
What To Do If You Are Investigated For Drug Diversion
Physicians can be investigated for drug diversion by numerous agencies with various potential consequences. You can be investigated by the local licensing board, by local law enforcement, or by a federal agency such as the DEA Drug Diversion, the OIG, the HHS, and the FBI.
Regardless of which agency you are dealing with , it is crucially important to seek legal advice before speaking with any of them or before submitting any documents they may request.
At Joseph Potashnik and Associates we have represented numerous healthcare practitioners nationwide in drug diversion and other matters. Call us today to discuss your case if you are a NY physician facing drug diversion issues.
New York DEA Diversion Attorneys
DEA Office of Diversion Control is the agency created to investigated, prevent, and prosecute the diversion of controlled substances by healthcare providers. According to the government data, most drug abuse issues result from legitimately manufactured drugs, which are diverted from their indented use into illegal drug trafficking.
DEA Diversion investigations usually involve physicians who sell prescriptions, pharmacists who falsify records to sell the drugs; employees who steal drugs from inventory and falsify orders to cover illegal sales, drug abusers who forge prescriptions, and armed robberies of pharmacies and drug distributors.
A physician who proscribes a controlled substance where there is legitimate medical need is providing medical services. However, if there is no medical need for the narcotic’s use, the provider is diverting it, which essentially makes him a drug dealer. The question is: who and how determines medical necessity. While DEA is actively seeking out health care providers who engage in unlawful activities such as selling prescriptions for controlled substances, we have seen many cases where the overly zealous DEA arbitrarily went after healthcare providers who were just doing their job.
At Joseph Potashnik and Associates, we have represented numerous healthcare professionals such as physicians, physician’s assistants, and pharmacies in DEA diversion investigations.
The fact is that many legitimately produced pharmaceuticals, including narcotics, depressants, and stimulants are often used for illicit purposes and are commonly abused. The government keeps a tight lid on the import, export, manufacturing, or distribution of all controlled substances. Any business involved in these activities as well as any physician or health professional licensed to dispense, administer, or prescribe controlled substance, and any pharmacy dealing with prescriptions for controlled substances must register with the DEA.
The federal controlled substances laws works closely with state controlled substance laws. Therefore, DEA works together with state professional licensing boards and local law enforcement. In our experience, most diversion investigations are conducted by local law enforcement. Some cases, usually more serious matters would be investigated by DEA agents.
One common scenario the DEA will get involve in is when a state board revokes the practitioner’s license. Since only licensed practitioners are authorized to administer or proscribe controlled substances, the DEA will ask the provider to voluntary surrender his or her DEA registration. If the practitioner refuses, then the DEA will file an administrative action to revoke the DEA registration. The DEA may also take an action in cases with ample evidence of illegal distribution or serious failure to keep proper records.
Another common situation is when the DEA takes an action to enforce compliance with the law. If there is evidence of failure to comply with the law, the DEA will take a “corrective administrative action”, such as a Letter of Admonition, or an informal hearing. In some situations, the DEA may even pursue criminal action.
We have seen healthcare providers triggering a DEA investigation by failure to control controlled substances and failure to guard against diversion. Federal law requires that all registered health care providers provide effective controls and institute procedures to guard against theft and diversion of controlled substances. The law actually provides a number of factors to determine whether the providers exercise adequate control. These include the location of the premises, security, the type of storage, control of public access to the facility, availability of alarm, etc. The idea is that providers are obligated to provide adequate security to protect theft and diversion of drugs.
Providers must be careful about who they hire as they may be responsible for the consequences. Those who were convicted of drug crimes, had their DEA applications denied, revoked, or surrendered may not be hired to have access to any controlled substances.
Registrants should not employ as an agent or employee who has access to controlled substances:
- Any person who has been convicted of a felony offense related to controlled substances
- Any person who has been denied a DEA registration
- Any person who has had a DEA registration revoked
- Any person who has surrendered a DEA registration for cause
We recommend our clients to take extra steps to ensure compliance with these laws. For example, we recommend physicians to keep all prescription blanks in a locked safe place and not carry them around. We suggest that doctors who write scripts for controlled substances actually write out the amount prescribed in addition to just writing the number. No one should be signing prescription blanks in advance. Physicians and pharmacists should communicate to verify prescription orders.
If you are subject to the DEA investigation or action in New York or New Jersey, you need an experienced attorney to advise you. Call our office today to speak with an experienced NY drug diversion defense attorney at Joseph Potashnik and Associates
Criminal charges for Drug Diversion in New York
In New York, a charge of Criminal Diversion of Prescription Medications and Prescriptions is a highly serious legal matter, which should be taken with all due concern.
If you are charged with this crime in the first degree, you may face up to 15 years in prison, while the lowest degree of this crime – the fourth degree bears a penalty of up to one year in jail. Thus, there is a wide range in terms of the severity of possible penalties.
One factor that affects the level of the crime is the amount of money exchanged during the criminal diversion: the higher the amount, the more serious the offense.
However, the crux of each criminal diversion case will be the issue of the “criminal diversion act.”
In order to prove that you actually performed a criminal diversion act, the prosecution must show that you transferred, delivered or received, in exchange for anything of pecuniary value, a prescription medication or device, with the knowledge or reasonable grounds to believe that the recipient, seller, or transferor has no medical need for it or is not authorized by law to transfer or sell it. Another way prosecutors establish a “criminal diversion act” is by proving merely that you transferred or received a prescription in exchange for something of pecuniary value.
On the other hand, New York law does carve out some exceptions to this statute. For example, the provisions of this statute do not apply to licensed physicians or other health care professionals. Further, a pharmacist acting in “good faith” is not subject to this offense or a person acting in “good faith” seeking treatment or assisting an individual seeking treatment. Acting in “good faith’ does not have a cut and dried definition, but, generally is taken to mean that the defendant in fact believed that the person he sold or gave the prescription to had a real medical need for it.
The charges of criminal diversion may be accompanied by charges of insurance fraud or Medicaid or Medicare fraud if the prescription is illegally filled and paid for with private or government insurance.
If you have been charged with criminal diversion of prescriptions and/or related charges in New York, you should retain an experienced criminal defense attorney, who will be able to use his knowledge and expertise to obtain the best possible disposition in your case. Call our experienced New York criminal defense attorneys at (212) 577-6677 to schedule an immediate consultation.