California Prescription Fraud & “Doctor Shopping” Laws

Under California Health and Safety Code, section 11153(a)¹, a doctor can be criminally punished for prescription fraud.

Additionally, a patient may be criminally punished for seeking a medical professional to provide controlled substances².

Definition of Health And Safety Code 11153 (Prescription Fraud)

Health and Safety Code section 11153(a) states:  A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice.

When Can A Doctor Be Charged With A Crime?

• A doctor issues a prescription not in the usual course of professional treatment or in legitimate and authorized research; or
• A doctor issues a prescription for an addict or habitual user of controlled substances, not in the course of professional treatment or as part of an authorized narcotic treatment program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use.

Who Can Be Charged With Violating 11153(a) HS?

• Any kind of Doctor
• Any licensed medical professional who can prescribe medicine (i.e., Registered Nurse, Physician’s Assistant, etc.)
• Any wholesaler or manufacturer, or agent or employee of such
• Any pharmacist for filling the prescription

Definition Of Health And Safety Code 11173 (Doctor Shopping)

Under Health & Safety Code section 11173, a patient can be criminally punished for “doctor shopping”. The law states:

HS 11173(a):  No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances,

1. By fraud, deceit, misrepresentation, or subterfuge; or
2. By the concealment of a material fact.

NOTE: This charge can be categorized as a misdemeanor or a felony. A felony charge under this Section carries all the weight and stigma of being deemed a “felon” under the eyes of the law, including but not limited to:

• Lose right to possess firearm,
• Lose right to vote,
• Lose right to sit on a jury,
• Lose right to hold public office,
• Must provide law enforcement with DNA sample,
• Immigration consequences, as a drug abuser, if you are a noncitizen.

Who Can Be Charged With 11173 HS?

Legal Defenses

There are a number of legal defenses available for both prescription fraud and doctor shopping.

Below are the most common.

Good Faith

Under Health & Safety Code § 11153, it specifically provides a requirement that the person charged must “knowingly violate” the law.

Under Health & Safety Code § 11210, a physician is allowed to “prescribe, furnish, or administer controlled substances” where he or she “in good faith”  believes the disease, ailment, injury…requires such treatment.”

Good faith is “that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.” It is “the opposite of fraud and bad faith.”

If, your attorney is able to convince the jury that you acted in good faith when issuing and/or filling the prescription. You have met your burden of proof to raise a reasonable doubt of guilt of violating section 11153.

DEFENSE FOR DOCTOR: GOOD FAITH:  

Health and Safety Code section 11210 exempts a physician acting in good faith from criminal liability under the provisions of section 11153. It is a complete defense.

Therefore, if a physician believed that he or she was acting under their duties and responsibilities as a medical professional at the time of issuing or filling the prescription, they will not be in violation of this law.

NO DEFENSE FOR PATIENT: 

Under these facts, Addy, the patient, would likely be guilty of a violation under Health & Safety Code § 11173 for concealing the material fact that she had been procuring Codeine from a drug dealer, and for obtaining the prescription through deceit.

Entrapment

Entrapment is defined as the act of law enforcement officers or government agents inducing or encouraginga person to commit a crime when the potential criminal expresses a desire not to go ahead.  

Entrapment is an effective legal defense if the commission or encouragement of the criminal act originated with the police or government agents, instead of with the “criminal.”

Lack of Evidence

A criminal defense attorney can show the prosecutor that they do not have enough evidence to convict you under Health & Safety Code § 11153 and/or § 11173.

This can be done with mitigating evidence or proof that not all elements of the crime were met by showing that the evidence submitted is either insufficient or insubstantial.

Penalties

Penalties	Misdemeanor	Felony
Fine	Up to $1,000	Up to $20,0003
Probation	Summary Probation	Formal Probation
Jail or Prison	Up to 1 year in county jail4	16 months, 2 or 3 years county jail5

Administrative Penalties For The Medical Professional, Including But Not Limited To:

• epartment of Consumer Affairs fines & penalties
• Medical Board under Business & Professions Code Section 802.1—Mandatory reporting required if charge of felony, or conviction of felony, or misdemeanor
• Possible Consequences: Revocation, Suspension, Citation, Public or Private Reprovals, Letter of Reprimand, Probation with terms and conditions

NOTE: If you are a medical professional, and have been charged or convicted under Health & Safety Code § 11153, and would like additional information on how this can affect your license or ability to practice, visit: http://www.mbc.ca.gov/About_Us/Laws/laws_guide.pdf

Eligibility

Charges under Health & Safety Code § 11153 and/or 11173 are typically:

• Not eligible for a Deferred Entry of Judgmentsentence, or
• Not eligible for Proposition 36 sentences, and
• Is not a strikeable offense.

Possible Immigration Consequences

These are considered “crimes of moral turpitude” for immigration purposes

Crime of Moral Turpitude:

This includes crimes which are considered to be objectively morally inexcusable, which includes both misdemeanor and felony offenses.

Any offense which is “shocking to the conscious” of the average person can bar a noncitizen from utilizing many different forms of immigration benefits. 

If you are convicted of a crime that is automatically considered a crime of moral turpitude, it will likely subject you to removal proceedings before an immigration judge. 

Here, a conviction under 11153 and/or 11173 depending on the circumstances, is considered a crime of moral turpitude, as crimes of fraud or deceit involve moral turpitude, where willfulness is an element.

MAY be considered an “aggravated felony” for immigration purposes

Aggravated Felony: 

This is a predetermined category of crimes that, include both misdemeanor and felony offenses, which can bar a noncitizen from utilizing many different forms of immigration benefits.

If you are convicted of a crime that is automatically considered an aggravated felony, it will likely subject you to removal proceedings before an immigration judge. Here, a conviction under 11153(a) and/or 11173(a), depending on the circumstances, MAY be considered an aggravated felony.

NOTE: For a full review of offenses categorized as “aggravated felonies,” “crimes of moral turpitude: and other bars from relief from removal proceedings under immigration law, visit: http://www.ilrc.org/files/documents/ilrc-ca_chart__notes-2013-03_05.pdf.

1. Health & Safety Code 11153(a) – A prescription for a controlled substance shall only be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. Except as authorized by this division, the following are not legal prescriptions: (1) an order purporting to be a prescription which is issued not in the usual course of professional treatment or in legitimate and authorized research; or (2) an order for an addict or habitual user of controlled substances, which is issued not in the course of professional treatment or as part of an authorized narcotic treatment program, for the purpose of providing the user with controlled substances, sufficient to keep him or her comfortable by maintaining customary use. [↩]
2. Health & Safety Code 11173(a) – No person shall obtain or attempt to obtain controlled substances, or procure or attempt to procure the administration of or prescription for controlled substances, (1) by fraud, deceit, misrepresentation, or subterfuge; or (2) by the concealment of a material fact. (b)  No person shall make a false statement in any prescription, order, report, or record, required by this division. (c)  No person shall, for the purpose of obtaining controlled substances, falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant, or other authorized person.(d)  No person shall affix any false or forged label to a package or receptacle containing controlled substances. [↩]
3. Health & Safety Code 11153 – Any person who knowingly violates this section shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail not exceeding one year, or by a fine not exceeding twenty thousand dollars ($20,000), or by both that fine and imprisonment. [↩]
4. See HS Code 11153 [↩]
5. Penal Code 1170(h)(1) – Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”. [↩]