Health Care Professional Investigations
Any time you are faced with a criminal investigation, it can be a complex and overwhelming experience. For those being investigated in the health care profession, it can be a downright scary time. Health care professionals can be investigated for a variety of reasons. It is important to remember not only your future, but your career could be on the line.
San Antonio Lawyer for Health Care Workers
Health care organizations, health care professionals and other professional service providers need passionate, skilled and sophisticated legal assistance when they face a possible criminal investigation. The lawyers at Goldstein & Orr in San Antonio have more than 40 years of experience representing individuals and business in criminal investigations at the state and federal level.
We are experienced in representing the health care professionals including doctors, nurses and pharmacy workers. We represent clients in a wide range of health care investigations including fraud, drug crimes and tax evasion. Contact us at (210) 226-1463 for a free phone consultation with an experienced criminal defense attorney at Goldstein & Orr.
Criminal Issues for Health Care Providers
Helping Health Care Providers in Trouble
Health care is a heavily regulated field in which minor changes to law and policy can have serious financial implications on health care providers. When providers make close calls about billing and claims procedures, they may find themselves investigated for or charged with some form of health care fraud.
The attorneys at Goldstein & Orr remain up-to-date on the changes in health care laws. They are experienced in defending clients and entity health care providers against criminal fraud allegations, including:
- Health care fraud
- Medicare fraud
- Medicaid fraud
- Insurance fraud
- Elder fraud
If you or your organization is facing health care fraud allegations, you need an attorney who understands the complexity of the health care field. We have the experience to identify and pursue all criminal defense opportunities in your case.
Investigations by the Texas Medical Board
All complaints related to health care, including acupuncturists and physician’s assistants, are filed with the Texas Medical Board. Each year the Board receives and reviews around 9,000 complaints from family members, health care professionals, and all other sources. When the Board receives a complaint, a staff analyst will determine whether that complaint is within their jurisdiction. If so, they will then begin the process of determining whether evidence exists to support the allegation and is in violation of the Medical Practice Act.
In the first 45 days of the investigation, TMB may attempt to contact both the complainant and the licensee. If it’s an administrative matter, then the review will be conducted by a TMB attorney-investigator. Medical care issues are reviewed by protocol by a TMB physician-investigator. The licensee will be asked to provide information and investigators may subpoena additional material from a third-party source such as a hospital.
If the investigation reveals standard of care/treatment violations, then all information will be reviewed thoroughly by at least two members of the TMB Expert Panel. These members will be board-certified in the same or similar medical specialty as the licensee who is being investigated. The case will then move towards litigation if the Expert Panel Report discovers that the respondent acted inconsistent with public health and welfare, which includes failing to meet their standard of care.
Once the investigation is over, the case will be assigned to a staff attorney and scheduled for an Informal Settlement Conference/Show Compliance proceeding. The proceeding will commence in front of two members of the appropriate board (Medical, Physician Assistant or Acupuncture). From there, the panel will provide an informal forum for the panel to overlook the evidence and so the licensee can present their case.
If the panel finds there was a violation of the Medical Practices Act, then they may offer an agreed order setting out the sanctions and terms to be imposed on the respondent. If it’s a minor violation, the panel may offer a remedial plan that is considered to be non-disciplinary.
Some of these sanctions include:
- Required drug tests
- Public reprimands
- Participating in an AA or similar program
- Require participation in rehabilitation or behavioral health programs
- Restricting the respondent’s license
- Requiring additional training and information
In addition, TMB may issue a suspension so the respondent is removed from their practice immediately. In some cases, they may permanently remove a licensee’s license by revocation.
Medical Practitioners Charged with Distribution of Controlled Substance
The federal statute for the “Distribution of Controlled Substances” is set out in 21 U.S.C. § 841 which provides that “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally … to manufacture, distribute, or dispense … a controlled substance.” 21 U.S.C. § 841(a)(1).
An exception is set forth in § 822(b), which provides: Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances or list I chemicals are authorized to possess, manufacture, distribute, or dispense such substances or chemicals (including any such activity in the conduct of research) to the extent authorized by their registration and in conformity with the other provisions of this subchapter. Id. § 822(b).
Regulations promulgated by the Attorney General provide “that a prescription for a controlled substance is effective only if it is ‘issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”’ United States v. Hurwitz, 459 F.3d 463, 475 (4th Cir.2006) (Citing 21 C.F.R. § 1306.04(a) and finding that “[t]he government’s expert witnesses testified that a doctor who knowingly prescribed opioids to an addict or to a patient the doctor knew was selling the drugs on the street was acting outside the bounds of legitimate medical practice”).
To convict a medical practitioner under § 841(a)(1), the government must prove:
- The medical practitioner distributed or dispensed a controlled substance
- Acted knowingly and intentionally
- The actions were not for legitimate medical purposes in the usual course of his or her professional medical practice or were beyond the bounds of medical practice
The courts have noted the lack of specific guidelines in the law concerning what is required to prove someone acted outside the usual course of professional practice. Instead, the courts engage in a “case-by-case analysis of evidence to determine whether a reasonable inference of guilt may be drawn from specific facts.” Id. A defendant’s “good faith” generally is relevant to a jury’s determination of whether a defendant acted outside the bounds of accepted medical practice or without a legitimate medical purpose. Id.
Therefore, a defendant cannot be convicted “if he merely made an honest effort to prescribe in compliance with an accepted standard of medical practice.” Id. at 476–77. Good faith in this context is an objective rather than subjective standard, meaning that “good faith is not merely a doctor’s sincere intention towards the people who come to see him, but, rather, it involves his sincerity in attempting to conduct himself in accordance with a standard of medical practice generally recognized and accepted in the country.”
Additional Resources
Texas Medical Board | Enforcement — Visit the official website for the Texas Medical Board, Physician Assistant Board, and Acupuncture Board to learn more about their investigation process. Access the site to learn their process, what paperwork may be involved, how to place a complaint, and more.
Federal Laws for Medical Practitioners Distributing Controlled Substances — Visit the official website for the U.S. Code for the chapter over Drug Abuse Prevention and Control to learn more about the laws against medical practitioners distributing drugs unlawfully. Access the site to read the statutory language for the crime’s penalties, elements, and more.
Attorney for Investigations of Health Care Professionals
Investigations and criminal charges against professionals are a major aspect of the criminal defense practice at Goldstein & Orr. Contact us today to talk to an experienced lawyer about your case. We represent individuals in heath care fraud investigations throughout the state and federal courts. Call (210) 226-1463 for a free consultation.
