Forest Tennant MD, DrPH
Prominent Pain Management Advocate, Forest Tennant, MD, becomes Government Target/Victim
On November 16, 2017, the day after he testified in Montana as an expert defense witness for Dr. Chris Christensen, DEA agents raided the offices and home of former West Covina Mayor Forest Tennant, MD in West Covina, CA. The Tennants arrived home that night to find their front door kicked in by DEA investigators.
The warrant (found below) sought to seize financial records, drugs, documents and records related to the distribution of painkillers, written as if the doctor was a Mafioso from Columbia. The claim to the judge in order to get the warrant made supposition that there would be evidence of crimes including distribution and possession with intent to distribute a controlled substance, health care fraud and money laundering.
Also named in the search warrant was United Pharmacy of Los Angeles and its owner and pharmacist, Farid Pourmorady. Court documents indicate the DEA’s investigation began in 2015 and targets a “drug trafficking organization” (DTO) that includes United and “multiple physicians whose prescriptions are filled at United, focusing in particular on Tennant.”
In the search warrant, (see below), the DEA alleges that Tennant prescribed such high doses of opioid pain medication that his patients must be selling them. It also alleges that Tennant took financial kickbacks from Insys Therapeutics, a controversial Arizona drug maker that is under federal investigation.
“It’s very lengthy and it goes into things in my past which are totally irrelevant but are obviously designed to smear me and make me look like a bad person. I see what they’re doing,” Tennant told PNN. He believes the raid is part of a broader effort to smear not only his reputation, but to discredit and intimidate other doctors who prescribe opioids to pain patients.
“They’re not just going after me, they’re going after patients,” said Tennant. “I think the country better understand what they’re doing here. They’re saying that regulations don’t count, standards don’t count, and they’ll decide who can get drugs and how much. I’d be worried about every pain patient right now, not just mine.” In response to the allegations involving Insys Therapeutics, he said “I have no financial relationship with anybody. My clinic is fundamentally almost a charity,” That is collaborated by patients that have written in support of Dr. Tennant in answers to media articles. The main mission, Tennant says, is to study chronic pain and search for alternatives.
“These things [charges] are so far out of line it’s hard to respond almost,” Dr. Tennant said.
Stated in the search warrant: “The crimes perpetrated by the DTO include the sale of powerful prescription narcotics such as oxycodone and fentanyl, along with other dangerous and addictive controlled drugs often sought in combination with narcotics, based on invalid prescriptions issued by practitioners including Tennant,” the documents say. “United has been submitting millions of dollars in fraudulent Medicare prescription drug claims, namely, claims for the cost of filling invalid narcotic prescriptions, including those issued by Tennant.”
“I understand what (DEA is) after. They figure if they go after the big guy, then no one will prescribe,” Tennant told PNN. “If they’re going to hurt me, no doctor is going to be willing to prescribe or do anything. That’s what they’re attempting to do. They’re attempting to neutralize me if they can. And I think there needs to be an outcry.
“The time has come. Is this country going to treat pain patients or not? Are they going to let people die in pain or are they not?” “They’re tragic. People are being harmed mentally emotionally. Families are being destroyed. I’ve never seen anything like it in this country,” Dr. Tennant said. “Are we going to let these people die, miserable, before their time, or provide them some care before they die?”
“People who are not even pain patients are starting to see the gross injustice in all this and the tragedy because, guess what? If they can take this person’s medical treatment away and let them die, is heart failure medicine next? Is insulin next because they don’t like the cost?” Tennant said.
Well, illegal persecution and legal genocide has been going on for 15 years now. Dr. Tennant knows that, but it becomes much more real when it happens to you.
Federal investigators allege that Tennant accepted more than $100,000 in kickback payments from drug manufacturer Insys Therapeutics, which produces a fentanyl-based nasal spray known as Subsys. Several executives of the manufacturer were recently indicted for racketeering. The alleged kickbacks from Insys came in the form of:
- Consulting fees
- Serving as faculty speaker at venue other than continuing education program
- Food/travel reimbursements
During the time the doctors received those benefits, they were prescribing unusually high amounts of the drug, investigators allege, and Dr.Tennant was the top prescriber of Subsys, with 96 claims totaling more than $1.9 million for just five patients between August 2014 and July 2016, according to the affidavit. Two of them resided in California, while three lived in Georgia, Hawaii and Washington.
Dr. Tennant acknowledges getting speaker fees of about $126,000 from Insys Therapeutics. He spoke for Insys about 30 times between 2013 and 2015 across Southern California talking to other doctors in their offices about how to use the drug and also during lunches and seminars. The payments he received covered the cost of travel, lodging and meals. He stopped taking payments in 2015 and was dropped from their speaker’s bureau.
“I’ve spoken for companies since 1973, and now they’re making an issue that the doctor shouldn’t be paid for speaking — that’s what a lot of this is about,” Tennant said, calling the assertion that they were kickbacks “ludicrous.”
For over 50 years, it has been legitimate practice for doctors to speak at events sponsored by drug companies. It is the main way doctors learn about the new products. It is also standard practice for drugs to be used off label. The speaker doesn’t introduce that as recommended, but in the course of the presentation, if questions arise, they can address off-label use. They just identify it as such. How else would Neurontin, approved for treatment of epilepsy, have become a prominent drug for the treatment of pain?
But now the government is again, creating crime where there is no crime, to attack doctors and pharmaceutical companies. Tennant is a revered figure in the pain community because of his willingness to see patients with intractable chronic pain who are unable to find effective treatment elsewhere or have been abandoned by their doctors. At 76, Tennant could have retired years ago, but works one week per month, seeing about 150 patients, many of whom travel from out-of-state and some are in palliative care.
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Who Is Dr. Forest Tennant?
Who is Forest Tennant, MD, DrPH? Dr. Tennant’s Current Website is http://foresttennant.com/ On his “About Page”, he unceremoniously describes himself thus:
Forest Tennant, MD, DrPH, is an internist and addictionologist who specializes in the research and treatment of intractable pain at the Veract Intractable Pain Clinics in West Covina, California. Dr. Tennant started his pain clinic in 1975, originally focused on treating the pain of cancer and post-polio disease.
Dr. Tennant is a member of the American Academy of Pain Medicine, the Academy of Integrative Pain Management, the American Pain Society, and the American Society of Addiction Medicine.
Dr. Tennant is Editor-in-Chief of Practical Pain Management journal and a member of the Practical Pain Management Editorial Board.
He has written over 300 medical articles, some of which are listed here: http://foresttennant.com/?page_id=25
A website with more detail is http://www.countrydocmd.com/DocBio.htm. Reading through this, I think you will get an idea of the outstanding physician and person Dr. Tennant is.
Place of Birth: Dodge City, Kansas
Boy Scouts of America – Eagle Scout
Citizen of the Year – West Covina, CA
Mayor of West Covina, CA
NAACP Service Award
Professional Licenses and Credentials:
Fellow and Diplomate of American Board of Preventive Medicine
California State Medical License
Author of over 300 scientific papers and books
Hutchinson, Kansas Junior College – Associated Arts (AA)
University of Missouri – Bachelor of Arts (BA)
University of Kansas Medical School – Doctor of Medicine (MD)
University of Louisville, Kentucky – Internship Internal Medicine
University of Texas, Medical Branch – Residency in Internal Medicine
University of California Los Angeles – Masters in Public Health (MPH)
University of California Los Angeles – Residency in Preventive Medicine
University of California Los Angeles – Doctor of Public Health (DrPH)
Major U.S. Army Medical Corp – Viet Nam
Post-Doctoral Fellowship-U.S. Public Health Service
Advisory Committee-FDA Drug Advisory Committee
Advisory Committee-National Institute on Drug Abuse (NIDA)
Drug Advisor – National Football League, NASCAR, Los Angeles Dodgers
Training Consultant: California Highway Patrol, California Department of Justice
Associate Professor-School of Public Health –UCLA
Founder and Executive Director-Community Health Projects Medical Group
Grantee: National Institute on Drugs
College on Problems of Drug Dependence
American Society of Addiction Medicine
American Society of Bariatric Physicians
American Academy of Pain Medicine
American College of Preventative Medicine
American Academy of Psychiatrist in Addiction
American Medical Association
American Public Health Association
Areas of Interest:
Current focus on research and education in the field of intractable pain, weight control and substance abuse.
Development of and passage of the Pain Patients Bill of Rights by the California State Assembly and Senate
On his home page, he describes:
My Goal and Mission
- Identify and treat the underlying causes of severe, chronic intractable pain.
- Develop clinical protocols to treat the underlying causes as well as provide symptomatic care that allows the intractable pain patient to function and have a good quality of life.
The Illegal Search Warrant: a Violation of the 4th Amendment
In the section below you will find a revised copy of the Search Warrant presented when the government raided Dr. Tennant’s office.
UNITED STATES DISTRICT COURT
Central District of California
In the Matter of the Search of
338 South Glendora Avenue
West Covina, California 91790
APPLICATION FOR A SEARCH WARRANT
I, a federal law enforcement officer or an attorney for the government, request a search warrant and state under penalty of perjury that I have reason to believe that on the following person or property [See Attachment A-3] located in the Central District of California , there is now concealed [See Attachment B]
The basis for the search under Fed. R. Crim. P. 41(c) is
- evidence of a crime;
- contraband, fruits of crime, or other items illegally possessed;
- property designed for use, intended for use, or used in committing a crime;
The search is related to a violation of:
21 u.s.c. §§ 846,841; 18 u.s.c. §§ 1347, 1349; 18 U.S.C. §§ 1956(a), (h)
The application is based on these facts:
See attached Affidavit
DEA DI Stephanie Kolb
Printed name and title
Sworn to before me and signed in my presence.
City and state: Los Angeles, California Hon. Alicia G. Rosenberg, U.S. Magistrate Judge
AUSA: Benjamin R. Barron
ATTACHMENT A – 3
Description of SUBJECT PREMISES-3 to be searched
SUBJECT PREMISES-3 IS DESCRIBED AS FOLLOWS:
TENNANT’S business located at 338 South Glendora Ave.
I. ITEMS TO BE SEIZED
- The Items to be seized are evidence contraband, fruits, or instrumentalities of violations of 21 U.S.C. §§ 841 (a) (1) and 846 (distribution and possession with intent to distribute a controlled substance, and related conspiracy), 18 U.S.C. §§ 1347 and 1349 (healthcare fraud and related conspiracy, and 18 U.S.C. § 1956 (money laundering and related conspiracy, for the dates January 1, 2013 and the present, namely:
- Controlled substances, including but not limited to Fentanyl, oxycodone, and hydrocodone.
- Documents that refer or relate to times when controlled substances were prescribed or dispensed, customer lists, appointment books, pharmacy information, correspondence, notations, logs, receipts, journals, books, and records.
- Medical records, patient files, sign-in sheets, charts, billing information, payment records, and identification documents for or that refer to any of the following patients:
- Patients who have received any controlled drug from UNITED and/or TENNANT, or
- Medicare beneficiaries.
- Documents or other materials that refer or relate to the TIRF REMS program or that otherwise address the requirements for safe or appropriate prescribing of TIRF drugs.
- Documents that refer or relate to payments to or from INSYS Therapeutics or any agent of INSYS Therapeutics; payments received or paid to attend any event connected to INSYS Therapeutics or the TIRF drug Subsys; or any Medicare or other billing for prescribing or dispensing of a TIRF drug (to include pre-authorization for any such billing),
- Documents, including but not limited to emails, check registers, cancelled checks, deposit items, financial instruments, facsimile transmissions, ledgers, or correspondence to/from any insurance provider, that refer or relate to: the prescribing or dispensing of any controlled drug or to any person to whom a controlled substance was prescribed or dispensed.
- United States currency, financial instruments and precious metals in an aggregate value exceeding $1,000.
- Records, documents, titles, mortgage paperwork, and deeds reflecting the purchase, rental or lease of any real estate and vehicles, such as a car, truck motorcycle, boat, plane, or RV.
- Not more than twenty (20) indicia of occupancy, residency, rental, or ownership of each SUBJECT PREMISES, including but not limited to utility bills, telephone bills, loan payment receipts, rent receipts, trust deeds, lease or rental agreements, and escrow documents.
- Keys to show ownership of storage facilities, businesses, locked containers, cabinets, safes, conveyances, and/or other residences.
- Any digital device used to facilitate the above-listed violations and forensic copies thereof.
- With respect to any digital devices used to facilitate the above-listed violations or containing evidence falling within the scope of the foregoing categories of items to be seized:
- Evidence of who used, owned, or controlled the device at the time the things described in this warrant were created, edited, or deleted, such as logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, e-mail, e-mail contacts, chat and instant messaging logs, photographs, and correspondence;
- Evidence of the presence or absence of software that would allow others to control the device, such as viruses, Trojan horses, and other forms of malicious software, as well as designed to detect malicious software;
- Evidence of the attachment of other devices;
- Evidence of counter-forensic programs (and associated data) that are designed to eliminate date from the device
- Evidence of the times the device was used;
- Passwords, encryption keys, and other access devise that may be necessary to access the device;
- Applications, utility programs, compilers, interpreters, or other software, as well as documentation and manuals, that may be necessary to access the device or to conduct a forensic examination of it;
- Records of or information about Internet Protocol addresses used by the device
- Records of or information about the device’s Internet activity, including firewall logs, caches, browser history and cookies, “bookmarked” or “favorite” web pages, search terms that the user entered into any Internet search engine, and records of user-typed web addresses.
II. SEARCH PROCEDURE FOR DIGITAL DEVICES
5. In searching digital devices, law enforcement personnel (the “search team”) will employ the following procedure:
- Search the digital device (s) on-site or seize and transport the device (s) to an appropriate laboratory. The search should not exceed 120 days without an extension of this warrant.
2-6. Various search procedures
7. The government may retain a digital device itself until further order of the Court or one year after the conclusion of the criminal investigation, only if the device is determined to be an instrumentality of an offense…
8. After the completion of the search of the digital devices, the government shall no access digital data falling outside the scope of the items to be seized absent further order of the Court.
6. In order to search for data capable of being read or interpreted by a digital device, law enforcement personnel are authorized to seize the following items:
a. Any digital device capable of being used to commit, further or store evidence of the offense(s) listed above;
b. Any equipment…
c. Any storage device
d. Any applications, programs, …
e. Any physical keys, encryption devices,…
f. Any passwords,…
7. During the execution of this search warrant, the law enforcement personnel are authorized to depress the fingerprints and/or thumbprints of any person, who is located at the SUBJECT PREMISES during the execution of the search and who is reasonably believed by law enforcement to be a user of a fingerprint sensor-enabled device that is located at the SUBJECT PREMISES and falls within the scope of the warrant.
8. The special procedures relating to digital devices found in this warrant govern only the search of digital devices pursuant to the authority conferred by this warrant…
- PROCEDURE FOR PATIENT REQUESTS FOR MEDICAL RECORDS
- The following procedures will be followed in order to minimize disruption to the legitimate medical needs of patients: A patient whose medical information has been seized pursuant to this search warrant may request that a copy of that seized information be returned to the patient. These requests must be in writing and shall be submitted to Diversion Investigator Stephanie A. Kolb, Drug Enforcement Administration, 1900 East First Street, Santa Ana, California 92701. Requests may also be faxed to (714) 647-4971 or emailed to Stephanie.firstname.lastname@example.org. The government must provide to the patient making the request a copy of any medical information it has regarding the patient within 48 hours (excluding weekends and holidays) of receiving the request.
I, Stephanie Kolb, being duly sworn, declare and state as follows:
- I am presently employed as a Diversion Investigator (“DI”) for the United States Drug Enforcement Administration (“DEA”) and have been so employed since 2012. I am currently assigned to the Los Angeles Field Division, Tactical Diversion Squad (“TDS”), which is tasked solely with the investigation of the illegal trafficking of pharmaceutical controlled substances.
- During the course of my employment, I received approximately thirteen weeks of instruction in the investigation of controlled substance registrants (including doctors, physician assistants, and nurse practitioners) and major narcotics traffickers at the DEA Academy in Quantico, Virginia. I received additional training at Quantico in asset forfeiture and money laundering investigations.
- I have specialized training and experience in narcotics trafficking conspiracy, and distribution investigations, specifically including pharmaceutical controlled substances investigations. I have participated in all aspects of drug investigations, including the use of confidential sources and undercover officers, electronic surveillance, the execution of search and arrest warrants, investigative interviews, and the analysis of seized record, physical evidence, and taped conversations. Over the course of my employment as a DI, I have been the case agent or lead investigator on several federal investigations that have specifically involved the illegal trafficking of pharmaceutical controlled substances by medical doctors, physician assistants, and nurse practitioners, and I have participated in multiple other investigations that involved the illegal diversion of pharmaceutical controlled substances. I have spoken on numerous occasions with pharmacists, physicians, Dis, Medical Board investigators, patients, and other witnesses having extensive knowledge of pharmaceuticals regarding the methods and practices of individuals trafficking in or diverting pharmaceutical controlled substances.
- Through my investigations, my training and experience, and my conversations with other law enforcement personnel, I have become familiar with the tactics and methods used by traffickers to smuggle and safeguard pharmaceutical controlled substances, to distribute and divert pharmaceutical controlled substances, and to collect and launder the proceeds from the sale of controlled substances. Further, I am aware of the tactics and methods employed by pharmaceutical trafficking organizations and individuals to thwart investigation of their illegal activities.
- I have participated in the federal prosecution of physicians, physician assistants, and pharmacists. During the course of trial, I have testified both to specific knowledge of the case and my knowledge obtained through training and experience.
- The facts set forth in this affidavit are based upon my personal observations, my training and experience, and information obtained from other agents and witnesses. This affidavit is intended to show merely that there is sufficient probable cause for the requested warrant and does not purport to set forth all of my knowledge of or investigation into this matter. Unless specifically indicated otherwise, all conversations and statements described in this affidavit are related in substance ant in part only.
II PURPOSE OF AFFIDAVIT
- This affidavit is made in support of an application for search warrants to search the following locations (collectively the “SUBJECT PREMISES”) and to seize evidence, fruits, and instrumentalities of violation of 21 U.S.C. §§ 846,841 (distribution of controlled substances, possession of controlled substances with intent to distribute, and related conspiracy); 18 U.S.C. §§ 1349 (conspiracy to commit health care fraud); and 18 U.S.C. §§ 1956(a), (h) (money laundering and related conspiracy);
- SUBJECT PREMISES-1: United Pharmacy Inc., (“UNITED”), located at 1129 South Robertson Boulevard, Los Angeles, California 90035. …
- SUBJECT PREMISES-2: a residence located at …, the residence of Farid Pourmorady, Pharmacist and Owner of United.
- SUBJECT PREMISES-3: the office location of Dr. Forest Tennant…
- SUBJECT PREMISES-4: a second office location of TENNANT.
- SUBJECT PREMISES-5: a residence located at … the residence of TENNANT.
- The SUBJECT PREMISES are more specifically described … The items to be seized are set forth in Attachment B…
- … The instant application for search warrants is specifically requested by Benjamin R. Barron, and Assistant US Attorney for the US Attorney’s Office for the Central District of California…
SUMMARY OF INVESTIGATION
- This investigation was initiated in approximately February 2015 and currently targets a drug trafficking organization (“DTO”) involving a pharmacy (UNITED) and multiple physicians whose prescriptions are filled at UNITED, focusing in particular on TENNANT. Specifically, investigators believe that UNITED, TENNANT, and various medical practitioners are profiting from the illicit diversion of controlled substances, including the powerful narcotic fentanyl, which are prescribed and dispensed other than for a legitimate medical purpose. The evidence discussed herein includes analysis of multiple data sets regarding the prescribing, ordering, and billing patterns of UNITED and/or TENNANT; opinions from three separate experts about red flags of diversion and fraud reflected in the data as to both UNITED and TENNANT; witness interviews, surveillances conducted by investigators; summaries of financial records obtained during the investigation; and records of a prior criminal conviction and related medical board adjudication against TENNANT for submitting fraudulent billings to Medi-Cal;
Based on the evidence developed in this investigation, I submit that there is probable cause to believe the following
a. The crimes perpetrated by the DTO include the sale of powerful prescription narcotics such as oxycodone and fentanyl, along with other dangerous and addictive controlled drugs often sought in combination with narcotics, based on invalid prescriptions issued by practitioners including TENNANT. For example, I submit that expert review of Medicare data along with beneficiary interviews independently demonstrate probable cause that TENNANT prescribed fentanyl drugs to non-cancer patients, even though the drugs prescribed are for use in treatment of breakthrough cancer pain.
b. UNITED has been submitting millions of dollars in fraudulent Medicare prescription drug claims, namely, claims for the cost of filling invalid narcotic prescriptions, including those issued by TENNANT.
c. Moreover, both UNITED and TENNANT are implicated in a large-scale federal investigation in the District of Massachusetts, which recently resulted in the issuance of a federal indictment against persons including the executives of a company manufacturing the fentanyl product Subsys. As set forth below, the grand jury’s findings include, among other things, that the defendants would engineer fraudulent insurance claims for Subsys (misleadingly make it appear as though the drugs were prescribed for breakthrough cancer pain), and that they would pay kickbacks to medical practitioners in the guise of purported “speaker fees.” Records obtained by the investigators in that case show that UNITED was among the top purchases of Subsys nationwide, that TENNANT was paid such “speaker fees” for presentations at locations including an expensive steakhouse, and that the owner and pharmacist in charge of UNITED (POURMORADY) attended such purported speaking events.
BACKGROUND REGARDING PROBABLE CAUSE
- Based on my training and experience, I know the following about the drugs relevant to the investigation in this case:
- Fentanyl is a generic name for a narcotic analgesic classified under federal law as a Schedule II controlled substance, also commonly known by the brand names Astral, Fentora, Actiq, and Subsys. Fentanyl is formulated in several strengths between 200 mcg and 1600 mcg per dosage unit. Fentanyl, when legally prescribed for a legitimate medical purpose, is typically used for breakthrough pain in end stage cancer patients. The Actiq lozenges or “pops” and fentanyl patches are the most sought after on the black market and can go for $100 per patch. A fentanyl prescription is generally issued for a modest number of dosage units to be taken over a short period of time. Fentanyl can be habit-forming and is a commonly abused controlled substance that is often diverted from legitimate medical channels.
- Oxycodone (Brand name OxyContin, Percocet, Roxicodone) is a generic name for a narcotic analgesic classified under federal law as a Schedule II narcotic controlled substance. Oxycodone, when legally prescribed for a legitimate medical purpose, is typically used for the relief of moderate to severe pain. Oxycodone is sometimes referred to as “synthetic heroin” or “hillbilly heroin,” and the effects, addiction, and chemical composition of oxycodone are extremely similar to heroin. An oxycodone prescription is generally issued for a modest number of pills to be taken over a short period of time because of the potential for addiction. OxyContin is a time-released formulation available in several strengths between 10mg and 80mg per tablet, designed for absorption into the system over the course of 10 to 12 hours. OxyContin was approved for use in 1996, and by 2001, OxyContin was the largest grossing opiate pain reliever in the United States. In 2010, because of public pressure, the manufacturer reformulated OxyContin to make it more difficult to snort, smoke, or otherwise abuse, and changed the markings on the pill from “OC” to OP” to differentiate the newer tamper-proof version. Roxicodone is an immediate-release formulation available in 5mg, 15mg, and 30mg tablets. Because of the immediate-release component, the potential for overdose and death with Roxicodone is exponentially higher than OxyContin, even though individual tablets generally contain less of the narcotic substance. Oxycodone in either formulation is extremely addictive and is a commonly abused controlled substance that is diverted from legitimate medical channels. Oxycodone typically has a street value of $10 to $15 per 30 mg tablet in the greater Los Angeles area.
- Hydrocodone (Vicodin, Norco, and Lortab) is a generic name for a narcotic analgesic classified under federal law as a Schedule II narcotic drug controlled substance; hydrocodone was elevated from a Schedule III to Schedule II drug in October 2014. Hydrocodone, when legally prescribed for a legitimate medical purpose, is typically used for the relief of mild to moderate pain. Accordingly, the prescription is generally for a modest number of pills to be taken over a short period of time. Hydrocodone is formulated in combinations of 5 to 10mg of hydrocodone and 325 to 750mg of acetaminophen. Hydrocodone can be addictive and is a commonly abused controlled substance that is diverted from legitimate medical channels. Hydrocodone typically has a street value of $3 per 10mg tablet in the greater Los Angeles Area.
- Individuals on the black market – both drug addicts and drug traffickers – often seek to abuse or sell narcotics such as those listed above in combination with drugs including benzodiazepines and muscle relaxants. Examples of benzodiazepines include alprazolam (brand name Xanax), diazepam (brand name Valium), and clonazepam (brand name Klonopin), each of which are Schedule IV drugs, intended primarily for use in treatment of conditions such as anxiety or insomnia. The primary muscle relaxant sought on the black market is carisoprodol (Soma), also a Schedule IV drug primarily used for treatment of physiological conditions such as muscle spasms. While those drugs are addictive and dangerous even taken alone, the combination of a narcotic with a benzodiazepine and/or a muscle relaxant magnifies the danger of the overall cocktail, and is known among law enforcement to be a major red flag of illicit diversion by medical practitioners such as doctors prescribing and/or pharmacists dispensing such cocktails. A cocktail of all three categories of drugs (a narcotic, benzodiazepine, and muscle relaxant) is commonly referred to on the black market as the “holy trinity” and is among the most sought-after prescription drug cocktails by addicts and dealers.
12. Based on my training and experience, I know that the distribution of controlled substances must meet certain federal rules and regulations. Specifically, I know the following:
- 21 U.S.C. § 812 establishes schedules for controlled substances that present a potential for abuse and the likelihood that abuse of the drug could lead to physical or psychological dependence. Such controlled substances are listed in Schedule I through Schedule V depending on the level of potential for abuse, the current medical use, and the level of possible physical dependence. Controlled substance pharmaceuticals are listed in Schedules II through V because they are drugs for which there is a substantial potential for abuse and addiction. …
- Pursuant to 21 U.S.C. § 822, controlled substances may only be prescribed, dispensed, or distributed by persons registered with the Attorney General of the United States to do so. … The Attorney General has delegated to the DEA authority to register such persons.
- Under 21 U.S.C. § 823 (f), DEA-registered medical practitioners (including pharmacies, see 21 U.S.C. § 802 (21)) must be specifically authorized to handle controlled substances in any jurisdiction in which they engage in medical practice.
- 21 C.F.R. § 1306.04 sets forth the requirements for a valid prescription. It provides that for a “prescription for a controlled substance to be effective (it) must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substance is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.”
- 21 C.F.R. § 1306.05 sets forth the manner of issuance of prescriptions. It states that “(a) 11 prescriptions for controlled substances shall be dated as of, and signed on, the day when issued and shall bear the full name and address of the patient, the drug name, strength, dosage form, quantity prescribed, directions for use and the name, address, and registration number of the practitioner.”
- 21 C.F.R. § 1306.12 governs the issuance of multiple prescriptions and states: “An individual practitioner may issue multiple prescriptions authorizing the patient to receive a total of up to a 90-day supply of a Schedule II controlled substance provided the following conditions are met: i.– v. gives requirements.
- California Health and Safety Code § 11172 states: “No person shall antedate or postdate a prescription.”
- 21 U.S.C. § 841 (a) (1) makes it an offense for any person to knowingly and intentionally distribute or dispense a controlled substance except as authorized by law. Distribution of a scheduled controlled substance in violation of 21 U.S.C. § 841 (a) (1) (often referred to as “diversion”) by a medical doctor occurs when a medical doctor knowingly and intentionally prescribes a controlled substance, … for a purpose other than a legitimate medical purpose and outside of “the usual course of professional practice.” See United States v. More, 423 U. S. 122, 124 (1975) (“We…hold that registered physicians can be prosecuted under 21 U.S.C. § 841 when their activities fall outside the usual course of professional practice.”), See also United States v. Feingold, 454 F.3d 1001, 1008 (9ty Cir. 2006) (“To convict a practitioner under § 841 (a), the government must prove
(1) That the practitioner distributed controlled substances,
(2) That the distribution of those controlled substances was outside the usual course of professional practice and without a legitimate medical purpose, and
(3) That the practitioner acted with intent to distribute the drugs and with intent to distribute them outside the course of professional practice.”)
- The Medical Board of California formally adopted a policy statement entitled “prescribing Controlled Substances for Pain.” The Medical Board’s guidelines for prescribing a controlled substance for pain state that the practitioner must obtain a medical history and conduct a physical examination. Such history and exam include an assessment of the pain and physical and psychological function, substance abuse history, prior pain treatment, assessment of underlying or coexisting diseases and conditions, and documentation of the presence of a recorded indication for the use of a controlled substance.
- California Business and Professions Code, Section 2242 (a) states that there must be a logical connection between the medical diagnosis and the controlled substance prescribed. “Prescribing, dispensing, or furnishing dangerous drugs . . . without an appropriate prior examination and a medical indication, constitutes unprofessional conduct.” A practitioner must make “an honest effort to prescribe for a patient’s condition in accordance with the standard of medical practice generally recognized and accepted in the country.” United States v. Hayes 794 F.2d 1348, 1351 (9th Cir. 2006)
- As noted above, the drugs implicated in this case include fentanyl, including in particular a form of fentanyl spray marketed under the brand name Subsys. From my training and experience, I know that fentanyl is the most powerful narcotic available on the prescription market, and is approximately 50 times more powerful than heroin. The class of fentanyl particular relevant in this investigation, including Subsys, is commonly referred to as TIRF drugs (transmucosal immediate-release fentanyl). TIRF medicines are used to manage breakthrough pain in adults with cancer who are routinely taking other opioid pain medicines around-the-clock for pain.
- To avoid the risk of misuse, abuse, and addiction associated with TIRF drugs, in December 2011, the United States FDA approved a Risk Evaluation and Mitigation Strategy (“REMS”) for such drugs… REMS requires providers be registered with the program in order to prescribe TIRF medications out-patient. Patients must sign a patient-prescriber agreement form before they can be prescribed any TIRF drugs. REMS requires enrollment of prescribers and pharmacies handling TIRF drugs and mandates specialized training on handling TIRF drugs. …
- As discussed below, I submit that the evidence demonstrates probable cause that UNITED and TENNANT were distributing TIRF drugs in violation of the REMS program.
STATEMENT OF PROBABLE CAUSE
A. Background on Targets of Investigation
- UNITED and Pourmorady
a. POURMORADY is a licensed pharmacist. UNITED is a licensed retail pharmacy.
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- TENNANT is a licensed medical doctor with a specialty in Pain Management and Board Certification in Public Health and General Preventive Medicine.
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- TENNANT’s DEA registration is currently listed as “Active Pending,” which means that TENNANT is currently under review/investigation (connected to this investigation)
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- Investigators have conducted surveillances at TENNANT’s home and offices. To provide one notable example, on October 30, 2017, DEA SAs witnessed TENNANT leave one office and travel to the other. TENNANT later left that location with patient files in his possession, and he drove to Hamilton Steakhouse in Covina, California. TENNANT sat at a bar at the steakhouse, and agents witnessed TENNANT writing in the patient files while seated at the bar. Later that evening, TENNANT left the steakhouse and was followed to his home.
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- My insertion: [MS Kolb drags up past issues:
- A decision in 2001 where TENNANT pleas nole contendere or “no contest” to charges of government insurance fraud, which was a misdemeanor and other charges were dismissed. TENNANT agreed to stop submitting billings to the Medi-Cal program, to pay $20,000 in restitution and to submit to a three-year term of formal probation.
- Supposed fraudulent Medi-Cal billings while serving as executive director of various methadone clinics, totaling $18.135. ]
Back to the document as written:
From researching TENNANT’s background via the Internet, I [Ms. Kolb] know that: In 1997, the year after OxyContin was introduced to the market (which I know from my training and experience marked the beginning of what eventually became the national opioid epidemic), TENNANT sponsored the “Pain Patient’s Bill of Rights” in the State of California, which called for expanding the use of opiate drugs for medical treatment of pain. Additionally, I know that TENNANT has published on topics including pain medicine and opioids, such as an article in 2009 arguing for using “ultra-high opioid doses” for certain patients with severe chronic pain.
B. Initiation of Investigation
- In February 2015, the DEA initiated the investigation in this case after receiving information from the DEA Fresno Resident Office that Dr. Ernestina Saxton (“SAXTON) was writing large quantities of controlled substance prescriptions to patients in Los Angeles. … the majority of which were controlled substance prescriptions filled at UNITED. . . .
. . . Investigation of UNITED by Dr. Jodi Sullivan. Pharm. D. . . .
g. i. Regarding TENNANT, Dr. Sullivan observed that UNITED submitted 319 prescription drug claims totaling approximately $2,018,652 in payments. Significantly, TENNANT was the top prescriber of Subsys for UNITED. . .. Overall TENNANT prescriptions accounted for 154 claims submitted by UNITED for beneficiaries residing outside of California, all of which were for controlled drugs. Based on these findings, Dr. Sullifan concluded, “the association of Dr. Tennant with United Pharmacy may warrant further investigation.”
F. CURES [California’s Controlled Substance Utilization Review and Evaluation System] Data for Tennant and Related Expert Review
- I have reviewed CURES data for drugs prescribed by TENNANT, for the approximate time period of August 2014 to July 2016. My review of the data shows what I recognize to be red flags reflecting the illicit diversion of controlled substances.
- For example, of the approximately 597 prescriptions for hydrocodone in tablet form, approximately 85% were for maximum strength 10mg hydrocodone. The remainder was predominately for high potency 7.5mg hydrocodone.
- I also observed that TENNANT was prescribing large volumes of benzodiazepines. . . . . Notably nearly half of these prescriptions are for 2mg alprazolam, the maximum strength tablet of the drug available at retail pharmacies, which I know is a drug that even psychiatrists will not ordinarily prescribe for outpatient treatment. Similarly, approximately 72% of the diazepam prescriptions are for maximum strength 10mg. To the best of my knowledge, TENNANT has no advertised specialty in psychiatry; I recognize large volumes of benzodiazepines prescribed by a non-psychiatric specialist, particularly when prescribed in combinations with narcotics, as a major red flag of illicit diversion.
- I observed repeated entries throughout the CURES data of patients simultaneously filling TENNANT prescriptions for dangerous combinations, such as combinations of narcotics with benzodiazepines and/or Soma.
- [Dr. Tennant’s prescription writing was reviewed by Dr. Timothy Munzing, a family physician who does work for the government. He submitted his report on October 13, 2017]
a. In conducted his review, Dr. Munzing selected 20 patients for “more detailed” review “based on potential significant areas of concern…” . . . Dr. Munzing concluded that “all have many extremely concerning findings” reflecting “prescribing patterns [that] are highly suspicious for medication abuse and/or diversion.”
b. The “non-exhaustive” “areas of concern” cited by Dr. Munzing include the following:
i. TENNANT was writing “extremely high numbers of pills/tablets” at a time. . . . including “multiple opioids/controlled substances concurrently. This increases the risk of overdose and/or death.” Dr. Munzing also observed that “many patients are receiving injectable opioids, hormones, etc.,” which is “highly irregular.”
ii. Dr. Munzing addressed the morphine equivalency dosing. . . . The risk of overdose death increases once a cocktail reaches an MED of 50-100 mg/day. “Many or most patients had levels far over those thresholds.
iii. Many patients are traveling long distances to see Dr. Tennant.
Ultimately, Dr. Munzing stated that “it is not possible to give a final conclusive opinion regarding the legality of the prescriptions in the CURES data, absent review of further evidence.” . . . However, Dr. Munzing concluded “based on the findings, and my extensive experience reviewing such cases, I find to a very high level of certainty that after review of the medical records, that Dr. Tennant failed to meet the requirements in prescribing these dangerous medications. These prescribing patterns are highly suspicious for medication abuse and/or diversion.
G. Expert Review of Medicare Claims Regarding TENNANT
- Dr. Sullivan reviewed Medicare Part D claims for prescriptions issued by TENNANT. . . . From her review, Dr. Sullivan concluded “the overall impression of Dr. Tennant’s prescribing is high opioid analgesic prescribing with questionable practices and combinations that are likely to be harmful to patients.”
- Dr. Sullivan’s findings include:
- Approximately 44% of all prescription drug claims were for beneficiaries outside California. Dr. Sullivan stated that “a telemedicine registration” may be obtained for prescribers “if they demonstrate a legitimate need for the special registration and are registered in the state in which the patient is located when receiving the telemedicine treatment,” but that “from review of state license sites where Dr. Tennant is associated with beneficiaries, there are no current state licenses for Dr. Tennant outside of California.”
- Dr. Sullivan evaluated the prescriptions for TIRF drugs, with higher than recommended doses per day, and at maximum strength. . . .
- Dr. Sullivan noted a “trend” in TENNANT’s “prescribing combinations of drugs that are consistent with ‘pill mill’ prescribing practices and are considered high risk prescribing,” such as:
- Dr. Sullivan focused in particular on combinations narcotics, benzodiazepines, stimulants, and/or carisoprodol, noting that “patients were commonly given two or three categories of drugs together,” . . .
- Dr. Sullivan also noted the large volume of benzodiazepines prescribed by TENNANT, including the observation of a “trend . . . of prescribing for the highest strength of a given benzodiazepine.
- Dr. Sullivan reviews the Open payments Database for records of compensation received by TENNANT. . . . [Pertaining to the payments for speaking for Subsys,] “The association of Dr. Tennant with significant prescribing of Subsys, may indicate fraudulent activity specific to this drug in particular.”
- Multiple executives of INSYS Therapeutics and other persons are currently under federal indictment in the District of Massachusetts based on a scheme to, among other things, provide kickback payments to doctors in the guise of “speaker fees” promoting Subsys.
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VI. ADDITIONAL PROBABLE CAUSE FOR ITEMS TO BE SEIZED
- Based on my training, education, experience, and discussions with other law enforcement officers, I know the following regarding the common modus operandi of the offenses under investigation in this case, namely controlled drug diversion and health care fraud committed by medical practitioners.
- Such practitioners often keep controlled substances and drugs, records of drug transactions, criminal proceeds, ledgers of compromised patients and beneficiaries (i.e., those to whom invalid prescriptions are issued), and other records within their businesses and other secure locations, (i.e., residences, safe deposit boxes, and storage areas), and vehicles, and conceal such items from law enforcement authorities. The drugs/prescriptions may be distributed or sold, but documentary records and ledgers remain. . . .
- Such practitioners also often retain personal and business notes, letters, and correspondence relating to their narcotics/prescription orders at their residences, businesses, . . . and electronically via digital devices. . .
- Such practitioners often retain telephone and address books and appointment books identifying additional individuals, including patients and patient recruiters, involved in drug diversion or health care fraud.
- Such practitioners commonly use personal communication devices and services to coordinate their criminal activities. . . .
- Such practitioners often maintain large amounts of United States currency in their residences and businesses, . . . to finance their ongoing illegal activities, and for their personal benefit and expenses.
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VIII. TRAINING AND EXPERIENCE ON DIGITAL DEVICES
- Based on my training and experience, I know that doctors routinely store information about patients on computers and other digital devices. . . . Accordingly, I see authority to seize and examine any computers and electronic storage devices found at the SUBJECT PREMISES, pursuant to the protocol set forth in Attachment B.
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- Based on the foregoing, I respectfully submit there is probable cause to believe that evidence, fruits, and instrumentalities of violations of 21 U.S.C. §§ 846, 841 (distribution of controlled substances, possession of controlled substance with intent to distribute, and related conspiracy), 18 U.S.C. § 1349 (conspiracy to commit health care fraud); and 18 U.S.C. §§ 1956 (a), (h) (money laundering and related conspiracy) will be located at the SUBJECT PREMISES and request that the Court issue the requested search warrants.
Signed by Stephanie A. Kolb
Diversion Investigator, DEA
Presented to the United States Magistrate Judge on November 13, 2017.