On the heels of the Supreme Court decision in Xiulu Ruan v. United States, wherein the Supreme Court held that the government must prove beyond a reasonable doubt that a medical provider knowingly or intentionally acted in an unauthorized manner when prescribing opioids to have the necessary criminal intent, the Department of Justice created a new strike force in New England to focus on illegal opioid prescriptions. The government’s decision to create this task force, especially after the decision in Ruan, signals that the government intends to intensify investigations into medical professionals prescribing opioids.

The New Opioid Strike Force

Assistant Attorney General Kenneth A. Polite Jr., of the Justice Department’s Criminal Division, announced the formation of the New England Prescription Opioid (NEPO) Strike Force and explained that the NEPO Strike Force will entail a joint law enforcement effort using resources from the Health Care Fraud Unit in the Criminal Division’s Fraud Section, U.S. Attorneys’ offices for three federal districts, law enforcement partners at the U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG), U.S. Drug Enforcement Administration (DEA), and the FBI. The strike force’s mission is to investigate the alleged illegal distribution of prescription opioids and to target alleged criminal conduct by all medical professionals.

U.S. Attorney Nikolas P. Kerest for the District of Vermont stated that the NEPO Strike Force “demonstrates the Department of Justice’s commitment to working with our law enforcement partners in Vermont and elsewhere to hold accountable health care providers who exploit the opioid epidemic for personal gain… Health care providers who issue illegal opioid prescriptions undermine important efforts to address the epidemic while putting patients at risk of overdose and physical harm.”

Xiulu Ruan v. United States

The announcement of the NEPO Strike Force comes just days after the Supreme Court decision in Xiulu Ruan v. United States. In Ruan, the Court overturned two physicians’ convictions for prescribing opioids outside the usual course of medical treatment. The Supreme Court held that the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner, meaning that it would be relevant whether the medical professional acted in good faith. Thus, if a medical professional reasonably believed he or she was prescribing opioids for a legitimate medical purpose, the professional did not knowingly or intentionally act in an unauthorized manner. The creation of the task force, just days after this decision, demonstrates the government’s unwavering commitment to combatting illegal opioid prescriptions.

What Medical Professionals Can Expect

Physicians and health care professionals should anticipate enhanced scrutiny and a continued increase in investigations. Medical professionals should work with counsel to ensure that their practices and documentation support a conclusion of appropriate prescribing and do not raise suspicion of lax or criminal conduct. Detailed recordkeeping is key. Counsel can help provide medical professionals with objective review to strengthen their policies and procedures, determine facts that warrant further clinician scrutiny and evaluation of patient prescription requests, warning signs of patient illicit drug seeking behavior, assessment of prescription changes, thorough patient exams and tests and monitoring of patient response and conduct with associated documentation consistent with appropriate diagnosis, treatment and prescribing that will help the clinician avoid investigation or quickly persuade law enforcement that the clinician acted reasonably based upon information and circumstances known at the time. Additionally medical professionals and employees of a medical practice should be trained to contact counsel immediately, before responding to an inquiry from a government official.

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