Amanda S. Marshall Former U.S. Attorney (Local Counsel)
Lynette Byrd Former Assistant U.S. Attorney
Roger Bach Former Special Agent (OIG & DEA)
Joe Brown Former U.S. Attorney
Experienced Narcotics Criminal Defense for Physicians, Pharmacists, and Nurses
If you work in the healthcare industry and have been accused of drug diversion, now is the time to take proactive, urgent action in your defense.
Drug diversion is a serious criminal charge. It is also a common one. Healthcare providers across the United States are coming under investigation more often than ever for drug diversion, drug possession, drug trafficking, and substance abuse.
In part, this is due to aggressive efforts by state and federal law enforcement agencies to pool their resources and “make an example” of white-collar criminals. And as the national heroin and opioid crisis escalates, the DEA, DOJ, and FBI, in particular, are ramping up their efforts to pin the blame on doctors, pharmacists, nurses, and medical professionals.
We have seen many drug diversion cases that are based on flimsy or misleading evidence or misunderstandings of fact. In fact, in many cases, it is the healthcare provider who has been targeted and victimized by a patient, an undercover investigator, a co-worker, or an employee.
Alternatively, in some cases, an instance of so-called drug diversion may actually amounts to a personal substance abuse problem that does not meet the legal standards for license revocation or criminal conviction.
An experienced drug defense attorney can help to defend you against these charges and fight for the best possible outcome, matching federal agents’ vigor with an aggressive legal defense defined by strategy.
We are a national reach criminal defense firm that focuses on federal healthcare defense. Our team of former federal prosecutors has helped many, many medical professionals overcome healthcare criminal charges and licensing disputes. Let us handle every aspect of your case and fight for the absolute best outcome. Contact Oberheiden, P.C. today.
Former Senior Trial Attorney U.S. Department of Justice
Joanne Fine DeLena
Former Assistant U.S. Attorney
Lynette S. Byrd
Former Assistant U.S. Attorney
Former U.S. Attorney
Aaron L. Wiley
Former Federal Prosecutor
Former Special Agent (OIG)
Former Supervisory Special Agent (FBI)
Former Special Agent (FBI & IRS-CI)
Kevin M. Sheridan
Former Special Agent (FBI)
Former Supervisory Special Agent (FBI)
Dennis A. Wichern
Former Special Agent-in-Charge (DEA)
What Is Physician Drug Diversion?
Drug diversion is a crime, the commission of which is generally defined as the misappropriation of a controlled substance (usually a narcotic, opioid, or prescription medication).
Anyone can be charged with drug diversion. Casual users and dealers of illicit drugs on the streets are arrested for drug diversion when there is evidence of stolen medications or other schemes to divert controlled substances.
But in recent years, drug diversion is increasingly being treated as a white-collar crime, closely associated with physicians, nurses, and other healthcare providers.
In the sections that follow, we will look at some of the specific ways in which doctors are accused of stealing or diverting drugs, as well as the methods investigators use to build a case whenever they can.
The Difference Between Criminal Drug Diversion and Drug Diversion Treatment Programs
The term “drug diversion” can cause some confusion because it has two different meanings, even within the same conversation.
The information on this page is about the serious criminal offense of drug diversion, for which our office provides vigorous legal defense, as well as representation in administrative proceedings.
Some states also offer treatment programs described as “drug diversion therapy,” which are available to people who are facing any number of substance-related issues — not just the crime of drug diversion.
The distinction is important because some websites, employers, or drug counselors will advise people under criminal investigation or administrative review to voluntarily self-enroll in a drug diversion program. You might even receive such advice directly from law enforcement or from your state’s Board of Medicine.
Some health professionals rush to enroll in these programs out of fear, believing it is their best recourse for avoiding sanctions or prosecution.
But generally speaking, it’s a good idea to talk to an experienced healthcare defense attorney before contacting any impairment programs. These programs often require intensive and invasive long-term monitoring, and the statements you make when interacting with their representatives may sometimes be used against you.
You may have other options for sparing your license and protecting your legal interests, which is why it’s in your best interest to contact an experienced healthcare defense team first.
Examples of Drug Diversion by Medical Professionals
Common examples of drug diversion in a healthcare setting include:
Writing a medically unnecessary prescription
Falsifying or exaggerating a medical condition to justify narcotics
Prescribing more medication than a patient requires
Prescribing or delivering medication to the wrong patient
Keeping some or all of a patient’s medication for yourself (or for a third party)
Forging a prescription
Giving a prescription pad to someone else
Stealing a prescription pad
Stealing narcotics from a hospital, clinic, or DEA-registered facility
Other violations of the Controlled Substances Act (CSA)
How State Drug Diversion Investigations Work
State-level investigations usually begin after agents receive a tip about possible drug diversion from a confidential informant or an anonymous patient or co-worker.
In other cases, it may be the state licensing board that first receives the tip or complaint and then automatically notifies law enforcement.
You may or may not be aware that an investigation is taking place. In most cases, by the time an investigator contacts you for an interview or to request information, the investigation is already well underway (more on how you should respond to these requests in the sections below).
At the end of this process, the state’s investigator may decide to refer your case to local or state police, or to the state Attorney General’s office for prosecution. Occasionally, state investigators may also refer the case to federal law enforcement or regulatory agencies.
Even if the investigator decides your case does not warrant further attention from law enforcement, they are still likely to refer the case back to the licensing board, which may pursue disciplinary action (including potential revocation of your license) even if there is no evidence of a prosecutable crime.
How Federal Drug Diversion Investigations Work
Federal investigations tend to be more intensive than state investigations, though in either case, the stakes can be extremely high.
Serious federal drug diversion cases are usually investigated by the DEA Office of Diversion Control, though other federal agencies may also be involved, including (but not limited to) the:
In some cases, agents from federal, state, and/or local law enforcement may pool their resources or share information.
Federal agencies often utilize undercover agents, who might purport to be new patients or employees. Agents may even approach your existing patients, colleagues, or staff members to encourage covert cooperation. Audio and video surveillance are not uncommon.
After they have been gathering information for a while, investigators might approach you for an interview, a request for information, or an audit. Alternatively, they may conduct a raid on your clinic, hospital, pharmacy, or private offices.
Please note, though, that no two investigations are exactly alike, and it is not always possible to know whether an indictment is impending. Even if investigators decide not to pursue federal charges, they may refer the case back to state prosecutors, local police, or the state licensing board.
Healthcare providers should remain vigilant and be wary of strange comments or unusual questions from patients. Moreover, you should contact an experienced drug diversion defense attorney immediately upon the first indication of a potential investigation.
How to Respond to a Drug Diversion Investigation or Request for Information
Any statements you make to investigators can and will be used against you.
In the early stages of an investigation, agents might approach you in a friendly manner, suggesting that they are only gathering routine information. They might even contact you regarding an investigation into another physician or clinic.
Do not volunteer information to any federal agent without consulting an attorney first. What appears to be innocent, routine questioning may very well be the late stages of a mounting federal investigation. Sometimes, a grand jury has already convened or issued an indictment in the case. Furthermore, an investigation into another party could quickly expand to bring you within its scope as well.
Likewise, avoid making statements during a raid. Agents are trained to secure as many statements as possible, especially from those they are likely to charge, and these statements can be held against you.
Call an experienced drug diversion defense lawyer before talking to any law enforcement agent.
Diversion of Narcotics by Nurses, PAs, or Technicians
Nurses are among the most common targets in drug diversion cases, and the news media is replete with headlines about drug-addicted nurses who stole their patients’ medications. These stories create a convenient narrative for prosecutors, but the truth is that many of these charges are unfairly exaggerated and based on distortions of fact.
Other common targets include PAs, medical technicians, and other members of the clinical medical staff.
You worked hard to earn your nursing or professional degree — and just as hard to secure your job. And yet the government can take it all away, along with your freedom, because of a single anonymous tip or a statement taken out of context.
Our office has extensive experience in defending nurses and other medical professionals against drug diversion and other healthcare charges. We can defend you on the criminal front and before the state Board of Nursing as well.
Have You Been Told to Expect Drug Diversion Charges? How Soon Should You Talk to a Lawyer?
The criminal justice system sometimes moves slowly. The investigation itself can drag on for many months, and you may not find out whether you will be prosecuted for even longer.
Similarly, the administrative complaint process can take some time.
You should not wait until formal notice of an administrative complaint or an impending criminal complaint to contact an attorney.
Why? Your lawyers may be able to take critical steps during the investigation process to minimize the likelihood of an adverse outcome.
In fact, in many of our cases at Oberheiden, P.C., we have been able to negotiate reduced charges — or even an outright dismissal of charges and a total shutdown of the investigation — during these early stages.
While we can never promise specific results, as a general matter, the sooner we are involved, the more helpful we can be. You should never assume it is too late to contact a lawyer, but we urge you not to delay. Please call us the moment you suspect you are under suspicion or investigation.
Our Drug Diversion Defense Attorneys
Our law firm brings together a roster of deeply seasoned legal talent, including former federal prosecutors who now head our healthcare criminal defense team.
We believe in respectful, judgment-free, and passionate legal representation. We don’t care what you might have done wrong, what you’re accused of, or what mistakes you might have made. We simply offer our help.
Free Defense Consultation with the Lawyers at Oberheiden, P.C.
A serious legal crisis demands a serious response. You’ve worked very hard to reach your station in life, and you deserve to get experienced and strategic legal representation on your side.
The right law firm can make all the difference. We offer years of insight and a long record of success. So please don’t face a drug diversion investigation alone. Call or contact our office for a free consultation right away.
This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results cannot guarantee a similar future outcome in your case. Oberheiden, P.C. is a Texas PC with headquarters in Dallas. The attorney on record limits his practice to federal law.
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