Record
keeping and following the California pain management protocols are key for
physicians who prescribe scheduled medications for pain management. California
revised its protocols called “Guidelines for Prescribing Controlled Substances for Pain” in November 2014 and expects all physicians to be familiar with it. You
can download a copy of it with its attachments from the link above which is my
public dropbox account.
Under
federal and state law, if the physical examination does not demonstrate
legitimate medical need which must be documented, then the prescription is no
longer protected by the DEA rules allowing physicians to prescribe. It is then
treated like an illegal drug and opioids, like cocaine, are treated harshly
under the sentencing guidelines. Even board certified pain management doctors
need to be careful to make sure their record keeping and physical examination
protocols are up to date. Every doctor can have a bad or busy day, but with
scheduled drugs such allowances are simply not tolerated. I recommend that doctors and clinics
systemize as much as they can which is sometimes not done in small or solo
practices. A recent case shows why this is so important.
San
Jose pain management physician Venkat Aachi, indicted on October 9, 2018, has
now pleaded guilty to distributing hydrocodone outside the scope of his
professional practice and without a legitimate medical need, and to health care
fraud. This is a huge blow to his practice and profession. On March 26, 2019, his guilty plea was
accepted by the Honorable Edward J. Davila, U.S. District Judge.
I
advise our clients to assume that every patient is wearing a wire and to not
ignore blatant red flags even if it has been a long-time patient. I encourage physicians to become aware of the rampant opioid addiction and the fact that these patients often appear middle or upper class and may have had numerous real injuries in the past.
Opioid
addiction is real and pain management as well as general practitioner physicians need to be careful to explore
any violations of the prescribing protocols. The DEA tends to send in undercover agents to have tape and/or video of
the purported physical examination and to show that the physician did not
conduct a thorough enough examination or failed to catch red flags or
overlooked them.
According
to the plea agreement, Dr. Aachi operated a pain clinic in San Jose and
naturally maintained a DEA registration number authorizing him to prescribe
controlled substances. Dr. Aachi admitted that from September 18, 2017,
through July 2, 2018, he wrote hydrocodone-acetaminophen prescriptions that
were outside the scope of his professional practice and not for a legitimate
medical purpose.
The
plea agreement describes transactions in which Dr. Aachi improperly distributed
hydrocodone. For example, in November of 2017, he wrote a prescription
enabling a patient to receive 90 hydrocodone-acetaminophen pills. Dr. Aachi
did not conduct a physical examination of the patient nor discuss the patient’s
pain or response to prior medication. Dr. Aachi acknowledged in the plea that
he knew the prescriptions were not for a legitimate medical purpose and that he
did not write the prescriptions in the usual course of his professional
practice.
Further,
Dr. Aachi admitted that on July 2, 2018, he falsely submitted to an insurance
company a false and fraudulent claim for payment for healthcare benefits,
items, and services. Dr. Aachi admitted he acted with the intent to
defraud the insurance company. I am seeing the addition of health insurance fraud charges in order to show that there was a financial basis for the improper prescribing.
This
plea while painful for anyone helps Dr. Aachi reduce his exposure to federal prison time since he was
indicted on six counts of distributing drugs outside the scope of professional
practice (in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)) and one count of
health care fraud, in violation of 18 U.S.C. § 1347. Aachi pleaded guilty to
one count under each statute and the remaining counts will be dismissed.
Dr.
Aachi remains free on bail pending sentencing which is set for July 1, 2019. It
is difficult to predict what sentence will be imposed. Any sentence is left to
the discretion of the federal judge after consideration of the U.S. Sentencing
Guidelines and the federal statute governing the imposition of a sentence, 18
U.S.C. § 3553. Obviously, the physician is a first-time offender.
The
maximum sentence is harsh (20 years’) with a maximum fine of $1,000,000 for the
illegal distribution of hydrocodone count alone. The health care fraud count carries a maximum
of 10 years in prison and a $250,000 fine. This is why pleas are common in
these cases where there are undercover tapes and inadequate or misleading medical
records.
This
case was a joint federal and state case since it was investigated and
prosecuted by member agencies of the Organized Crime Drug Enforcement Task
Force, a focused multi-agency, multi-jurisdictional task force investigating
and prosecuting the most significant drug trafficking organizations throughout
the United States by leveraging the combined expertise of federal, state, and
local law enforcement agencies including the DEA, FBI, Health and Human
Services-OIG, and the California Bureau of Medi-Cal Fraud and Elder Abuse.
Even offices that are well-run and respectable need to have a compliance plan in place in order to ensure that prescriptions are handled properly. It is too easy to get complacent and with long-term patients that a provider trusts, it creates additional problems. An office can have a plan put together and have a health care lawyer review it and suggest
Posted by Tracy Green, Esq.
