As all top New York Medicaid Fraud defense lawyers know, the first step to presenting a strong defense in a criminal case – whether state or federal – is to know and understand the elements or factual requirements for the successful prosecution of the crime. For the offense of Criminal Diversion of Prescriptions, state prosecutors must prove at trial that the defendant knowingly performed what is known as a Criminal Diversion Act. This element is specifically defined in four alternative subsections of Section 178.00 of the New York Penal Law. These four subsections require the prosecution to prove at trial that you knowingly:
- Transferred or delivered, in exchange of anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the recipient has no medical need for it; or
- Received, in exchange for anything of pecuniary value, a prescription medication or device with knowledge or reasonable grounds to know that the seller or transferor is not authorized by law to sell or transfer such prescription medication or device; or
- Transferred or delivered a prescription in exchange for of pecuniary value; or
- Received a prescription in exchange for anything of pecuniary value.
NY Penal Law § 178.00 (3), (a) – (d).
Under the statute, a “prescription medication or device” can be “any article for which a prescription is required in order to be lawfully sold, delivered or distributed.” NY Penal Law § 178.00 (1). What is clear at this point is that this provision covers more than just drugs considered controlled substances under state law; with one court only requiring that prosecutors prove the drugs at issued were merely “regulated, and not available to the public without a doctor’s prescription.” People v. Ross, 12 Misc.3d 755, 761 (Kings Co. Crim. Ct. 2006). And like the offense of Criminal Sale of a Prescription for a Controlled Substance by a Practitioner or Pharmacist (NY Penal Law § 220.65), the actual exchange of the drugs themselves need not be at issue. Written prescriptions authorizing their distribution, lawfully by a pharmacist, can be a sufficient factual basis for the charging and prosecution of this offense.
If you or someone you know has been arrested for Medicaid or Medicare fraud and unlawfully profiting from the sale of prescriptions, consider contacting one of our top New York white-collar criminal defense attorneys to discuss potential defenses in your case. Exchanges of money for prescription drugs or written prescriptions for drugs can, and often do, cover perfectly legal conduct that occurs every day in the regular practice of medicine and strong defenses may be available in the right case.
Discuss the circumstances surrounding your arrest with the experienced Manhattan criminal attorneys at the Law Offices of Jeffrey Lichtman. Our skilled defense team may be able to put together powerful argument favoring a dismissal of the charges against you long before trial. With our experienced advocates on your side, your arrest and prosecution for a Criminal Diversion of Prescriptions offense may be resolved without loss to freedom, livelihood and ultimately, good name within the state.
More information on the New York offense of Criminal Diversion of Prescriptions, including applicable penalties, and other Medicaid or Medicare-related offenses, by physicians, may be found here.