How to Protect Your Practice From a Drug Diversion Investigation

LAS VEGAS — Healthcare providers got an insider's look at how law-enforcement officials conduct drug diversion investigations, learning how to avoid unintentional mistakes that may garner unwanted scrutiny from regulatory bodies and how to better protect their practices.

Two members of the National Association of Drug Diversion Investigators, Marc Gonzalez, PharmD, and Steven Louie, JD, hosted an interactive session detailing actual cases in which “pill mills” were busted, letting clinicians enact scenarios in which they assume the role of the drug diversion investigator. 

“There are a lot of things that are done in the background that regulatory and law enforcement do that practitioners have no clue about. If you know this, you'll be better able to protect yourself and know what red flags will get their attention,” Gonzalez said. 

Gonzalez and Louie identified a laundry list of factors from previously documented legal cases that could provoke probable cause for law enforcement to obtain a warrant, make an arrest, or conduct a personal or property search in the event that criminal charges are being considered for drug diversion (see Table). 

TABLE. Red Flags for Probable Cause in Drug Diversion Investigations
Demonstrating lack of “good faith” — defined as honesty of purpose, lack of intent to defraud, and being faithful to one's duty or obligation— when conducting a patient examination, as indicated by spending very little time with the patient
Issuing large numbers of prescriptions
Distributing an inordinate quantity of controlled substances
Directing patients to fill prescriptions at different pharmacies or to travel far distances to fill prescriptions
Issuing prescriptions to a patient known to be delivering drugs to others
Asking patients what they want and prescribing what they want
Writing prescriptions used at intervals inconsistent with legitimate treatment, or writing multiple prescriptions during the same visit
Billing patients based on the type of prescription, number of prescriptions written, or quantity of drug dispensed instead of by the office visit
Treating patients whose conditions never improve or worsen
Prescribing every patient the same amount of medication (eg, 100 hydrocodone; 100 Xanax)
Attracting long lines of patients or crowds
Writing prescriptions using multiple, sometimes fictitious names

The investigators then assigned clinicians to work in teams to develop a plan for how they would act on anonymous tips provided for several case-based scenarios, as well as for organizing an undercover investigation and obtaining a search warrant. While working through the cases, Dr. Gonzalez and Mr. Louie offered practical advice to attendees in the event that become subjects of a drug diversion investigation.

5 Tips for Surviving a Drug Diversion Investigation

  1. Observe the right to remain silent. Oftentimes when regulatory agencies and law enforcement start an investigation, clinicians become what Dr. Gonzalez described as “talking heads,” freely offering information about incidents that often have nothing to do with the topic of the investigation. “Be quiet and wait to find out what is going on. Make use of due process in the United States, and do not talk until you have legal representation,” he instructed.
  2. Do not prescribe controlled substances to new patients without obtaining a full history and performing a comprehensive workup. “Word travels and patients will know that your practice does not prescribe medications without appropriately vetting individuals. Part of that is ordering past treatment records.”
  3. Follow Federation of State Medical Boards Model Guidelines.  This agency, which represents 70 US medical and osteopathic boards, works to ensure uniform licensure, policy, education, and credentialing for medical professionals as a national resource to uphold excellence in medical practice. 
  4. Create a “Practice Committee” within your community. Assemble a group of 10 to 15 pain management clinicians to meet quarterly and discuss treatment plans and recommendations for challenging patients. “Basically, you will get a treatment plan from everyone on the committee; therefore, if regulatory knocks on your door and says they have a medical consultant who accuses you of not treating a patient appropriately, you can say, ‘I have had this reviewed by 12 other practitioners, and they say that this is the best course of treatment,'” advises Dr. Gonzalez. 
  5. Establish a liaison with local law enforcement. “Have the president of your medical society meet with area sheriffs or the chief of police,” said Dr. Gonzalez. “Going directly to the top officials and asking how you can work together to prevent diversion is much better than cold-calling a police officer who may not be in the best of moods because they have been stationed at the front desk due to injury or disciplinary action.”

As government interventions are ramped up to control opioid prescription abuse, legitimate pain management healthcare providers and patients alike are at greater risk than ever for being unfairly stigmatized, according to Gonzalez. An increasing number of general practice and family medicine clinicians are opting out of offering pain management services, and pain management specialists are overloaded.

It is more important than ever for pain management providers to protect themselves from unnecessary litigiousness, while at the same time avoiding the unintended adverse consequence of underprescribing pain medications to patients who need them. “Don't become complacent,” cautions Dr. Gonzalez.  “Have a plan in place.”

The best way to do this is to establish a community standard of what it means to be an ordinary, reasonable practitioner. “Regulatory will see right away that you have gone above and beyond your standard duties,” Dr. Gonzalez emphasized. “Nothing is completely bulletproof, but this is pretty close.”

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