CRIMES INVOLVING PRESCRIPTION DRUGS
by
Lana Taylor, Assistant Attorney General
and
Kevin Wyatt, Insurance Fraud Investigator

The Utah Controlled Substance Act specifies a number of criminal violations that pertain specifically to prescription drugs.  Utah Code Ann. ' 58-37-8(3)(ii) makes it a third degree felony for any person to knowingly and intentionally obtain or attempt to obtain any controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or by the use of a false name or address.  This same subsection also provides that it is a third degree felony for any person to knowingly and intentionally obtain or attempt to obtain any controlled substance by failing to disclose having receiving a controlled substance from another source.  These crimes generally relate to conduct that is often referred to as doctor shopping.
Other provisions in the Act relate specifically to forged prescriptions.  Utah Code Ann. ' 58-37-8(3)(iii) makes it a third degree felony for any person to knowingly and intentionally obtain or attempt to obtain any controlled substance by making a false or forged prescription, or by altering any prescription.  This subsection also applies to anyone who simply utters or provides the forged prescription at the pharmacy.  In addition, Utah Code Ann. ' 58-37-8(2)(a)(iii) provides that it is a violation of the law to knowingly and intentionally possess an altered or forged prescription for a controlled substance.  The mere possession of a forged prescription is a class B misdemeanor for a first conviction, a class A misdemeanor for a second conviction and a third degree felony for a third conviction.
In addition, the Act specifies crimes related to the possession and distribution of prescription drugs.  Utah Code Ann. ' 58-37-8(2)(a)(i) provides that it is unlawful for any person knowingly and intentionally to possess or use a controlled substance unless it was obtained under a valid prescription or order, directly from a practitioner while acting in the course of his professional practice.  Utah Code Ann. ' 58-37-8(1)(a) provides that it is unlawful for any person to knowingly and intentionally possess a controlled substance with the intent to distribute it or to actually dispense or distribute a controlled substance, unless authorized by the statute.  The penalties for violating these provisions vary, depending on the schedule of the controlled substance. Thus the Act makes it clear that anyone who possesses a prescription drug such Oxycontin without a valid prescription has committed a crime as has a person who gives or shares Oxycontin with a friend.
There are other crimes in the code that are related to the abuse of prescription drugs but are of a financial nature.  Individuals who visit multiple providers to obtain prescriptions for controlled substances often use their health insurance to pay for both the cost of the visit as well as the cost of the prescription drugs.  This may give rise to a charge of Insurance Fraud pursuant to Utah Code Ann. ' 76-6-521, which would entitle the insurance provider to restitution for the money they paid out for the fraudulent conduct.  Often times an insurance company may decline to pay for billed charges when they learn that the individual is engaged in criminal conduct.  This means that the medical provider or the facility where the services were obtained often goes uncompensated for the services rendered.  This may give rise to a charge of Theft of Services pursuant to Utah Code Ann. ' 76-6-409.  And finally an individual who uses a medical provider=s name or DEA number to fraudulently obtain a prescription may have committed the offense of Identify Fraud pursuant to Utah Code Ann. ' 76-6-1102.
Investigating these crimes can be tricky because of the privacy issues regarding medical information.  However the Health Insurance Portability and Accountability Act (HIPAA) allows a medical provider to disclose protected health information to law enforcement if the provider believes that a crime has occurred on the premises of their facility.  The language in HIPAA states:

     Permitted disclosure: Crime on premises. A covered entity may disclose to a law enforcement official protected health information that the covered entity believes in good faith constitutes evidence of criminal conduct that occurred on the premises of the covered entity.

45 C.F.R. ' 164.512(f)(5).  Thus if the medical provider believes that a patient has been trying to obtain a prescription for a controlled substance by false pretenses, they can disclose that information to law enforcement.  Similarly, Utah law also allows a medical provider to disclose medical information to law enforcement in these types of controlled substance investigations.  Utah Code Ann. ' 58-37-6(9) provides that [a]ny information communicated to any licensed practitioner in an attempt to unlawfully procure, or to procure the administration of, a controlled substance is not considered to be a privileged communication.
In the beginning of a prescription fraud investigation it is often helpful to review the Controlled Substances Database (CSDB) report which is maintained by the Utah State Department of Commerce, Division of Occupational Licensing (DOPL).  By reviewing an individual=s CSDB report an investigator can obtain valuable information regarding the controlled substances an individual has obtained, when they were obtained and from whom they were obtained.  Officers can access the CSDB on-line by going to https://www.csdb.utah.gov/ and obtaining a secure pin number from DOPL.  A one year CSDB history can be accessed on-line by law enforcement officers or an officer can obtain a more extensive CSDB history by contacting DOPL directly.  Factors to look for on the CSDB report which may indicate that an individual has been fraudulently obtaining prescriptions includes:
     1. Obtaining numerous prescriptions for controlled substances which are often abused such as Oxycodone, Hydrocodone, Fentanyl, Dilaudid, Xanex, Ambien, and Suboxone;
     2. Prescriptions written by multiple medical providers; and
     3. Prescriptions filled at multiple pharmacies.
Although the CSDB is a valuable law enforcement tool, it is only a roadmap to be used in the investigatory stage.  A CSDB report contains protected information that cannot be released except as provided in Utah Code Ann. § 58-37-7.5.
    The next step in the investigation is to determine whether the prescriptions listed on the CSDB report are valid.  Using the CSDB an investigator can identify providers who appear to have written overlapping prescriptions based on the quantity of the prescription or the number of days for which the prescription was written.  According to state and federal regulations, 80% of the prescription must be consumed, as written by the medical practitioner, before a new prescription of the same controlled substance can be filled.  Since it is unlikely that a legitimate medical provider would knowingly prescribe an individual a controlled substance if they still a large quantity of the substance left, the investigator should contact the medical provider who wrote the prescription to see if the individual disclosed that they were obtaining controlled substances from other sources, as required by the statute, or if the individual was forging these prescriptions.  To begin, it is helpful to notify the medical provider that the investigator believes that the patient has been fraudulently obtaining prescriptions.  This can be done by sending the medical provider a copy of the Letter to Provider which can be found on the UNOA website at  http://unoa.org/rxfraud.html.
    The investigator may also want to send a witness statement for the medical provider to fill out and return.  The UNOA website also contains a number of witness statements that can be used in prescription fraud investigations, including both doctor shopping and forgery cases.  These witness statements comply with the Utah rules which govern the admission of reliable hearsay at a preliminary hearing.  If the medical provider fills the witness statements out completely it will not be necessary for him/her to appear at the preliminary hearing because the witness statement can be introduced in lieu of his/her testimony.  If the witness statement is fully completed, it should contain enough information that charges can be filled in a doctor shopping case without the investigator having to obtain the actual prescriptions.  However, if the case involves a forged prescription, the investigator should still obtain the prescriptions from the pharmacy and have the pharmacist fill out a witness statement.
If you have questions or would like more information about prescription fraud investigations contact Investigator Kevin Wyatt from the State of Utah, Department of Insurance, Fraud Division, at 801-531-5385 or kwyatt@utah.gov.

The forms in this section can be used by investigators in a prescription fraud investigation.  Before sending out any of these forms the investigator should change the letterhead to reflect the investigator's own agency.  The investigator should also replace the information that is italicize in the Letter to Provider with the information that is pertinent to the case.