Recent Federal Ruling May Open the Door for Prescribing Crimes Defense
As federal opioid investigations surge, a recent ruling could make it harder to gather evidence against health care providers.
Over the last three years, the Department of Justice (DOJ) has ramped up criminal prosecutions against doctors and others who prescribe and dispense opioids. In April 2019, the DOJ, in 11 different federal districts, indicted 31 doctors, seven pharmacists, eight nurse practitioners and seven other licensed medical professionals. More recently, the DOJ’s nationwide health care fraud and opioid takedown led to charges against 345 defendants. And more indictments are on the horizon.
Many opioid prosecutions arise out of federal reviews of prescription drug monitoring programs (PDMPs). PDMPs are state-run programs that track controlled substance prescriptions by requiring prescription dispensers, such as pharmacies, to report dispensing of controlled substances to a central database. The programs were first created to prevent doctor shopping during the initial phase of the opioid epidemic.
The 11th U.S. Circuit Court of Appeals recently found federal law enforcement agents did not need a warrant to search Florida’s PDMP. However, the decision left open a potential path to suppress evidence against doctors criminally charged after a warrantless PDMP search.
The conduct in the 11th Circuit’s case dated back to a medical practice Florida’s Department of Health ordered closed in 2011. The nature of PDMPs at that time was very different than it is today.
While the court considered several factors to decide if the evidence obtained by investigators met the Fourth Amendment’s standards, the case turned on the voluntariness of the physician’s disclosure of his opioid prescriptions to Florida PDMP. The court found the doctor voluntarily disclosed his prescribing records by participating in Florida’s PDMP, so no warrant was needed.
Before 2011, most PDMPs did not require compliance. Now they do. Today, every state except Missouri, every U.S. territory except Guam, and the District of Columbia have some form of mandatory PDMP enrollment for prescribers. This change means prescribers are not volunteering to participate in PDMP programs but are compelled to do so by regulators. As a result, law enforcement officers may now need a warrant to search these records. This change could be the difference between a charge being dropped and a 235-month prison sentence.
Our Health Care Practice Group will continue to monitor cases that involve prescription drug monitoring programs. Please contact Andrew Coffman or any member of Phelps’s Health Care team if you have questions or need advice and guidance.
