We are seeing more and more federal investigations related to the drug ketamine in the past few months. Some of this may be in reaction to high-profile celebrity deaths that appear to have been caused by ketamine overdoses, such as Friends actor Matthew Perry’s. Some of it may be in response to the role that healthcare providers played in the opioid epidemic, which has killed hundreds of thousands of people. Regardless, law enforcement personnel from numerous agencies, but particularly the U.S. Drug Enforcement Administration (DEA), have amped up their scrutiny into how this important drug is used and abused in the healthcare system.

While the agency’s goal is to protect the public, doctors, hospitals, and veterinarians who use the drug in their line of work can find federal regulators looking over their shoulders. If an investigation uncovers signs of misconduct or drug diversion, it can spawn an administrative, civil, or even potentially a criminal case that carries severe sanctions and even the possibility of prison time. 

Here are answers to five questions that Dr. Nick Oberheiden, founding partner of the national law firm Oberheiden P.C. and a leading healthcare defense attorney at the firm, often gets from clients who are concerned about a ketamine investigation or who are actively facing one.

1. Who is Most at Risk of a Ketamine Investigation?

Any healthcare professional or organization that handles ketamine in the course of their business can be the target of an investigation related to the drug. However, two types of healthcare professionals that are overrepresented in the host of targets for ketamine investigations seem to be veterinarians and psychologists. 

Veterinarians are targeted by the Drug Enforcement Administration and other law enforcement agencies for their ketamine use because it is more common to use ketamine to anesthetize animals for surgery than it is for humans. Simply put, veterinarians are the ones using the ketamine to provide healthcare services. This makes them more likely to get investigated for their ketamine uses and procedures than others.

However, psychologists are increasingly getting targeted for ketamine investigations because the ketamine treatment has recently shown to be of some use in combatting certain psychological issues, mental health conditions or mood disorders, like post-traumatic stress disorder (PTSD), anxiety, obsessive compulsive disorder, or a major depressive disorder, including treatment-resistant depression in clinical trials with depressed patients. However, the U.S. Food and Drug Administration’s (FDA) approval for ketamine for these conditions is extremely limited. Over-prescribing ketamine from a psychiatric office whether to treat depression or as a mood stabilizing medication can attract the attention of regulators and investigators from a host of federal agencies.

2. Does This Mean Investigators Already Have Evidence Against Me?

If you find that you are facing a ketamine investigation, it is now nearly always the case that federal regulators already have evidence of misconduct. Routine audits just do not happen much, anymore. Regulators are stretched too thinly. 

Of course, this means that you need to take the investigation very seriously. The investigators will not be coming by for coffee. They are going to be visiting with a mission.

3. What is the Investigation About?

Learning that you are the subject of a ketamine investigation can be both overwhelming and confusing. It is often overwhelming to learn that federal law enforcement officers suspect that you are violating the law. It is often confusing because the notification that says that you are under investigation can be extremely vague.

Unfortunately, law enforcement agents may not be very forthcoming about what information they want to see or the nature of the violations that they are going to investigate – if they were, you could prepare for the investigation, which is the last thing they want. 

When it comes to ketamine, though, the most common suspicion that triggers an investigation is likely drug diversion. After all, ketamine is a Schedule III controlled substance under the regulations for the Controlled Substances Act (21 C.F.R. § 1308.13) and is a very addictive drug that is also popular to use recreationally for its dissociative high. Therefore, lots of ketamine investigations are to determine whether you or someone at your healthcare organization is diverting the drug from legitimate uses to illegitimate ones. This can happen if, for example, you or someone else:

• Prescribes ketamine to someone, knowing that they do not have a medical condition that calls for it
• Prescribe yourself ketamine for your personal, recreational use
• Make a legitimate prescription of ketamine, but for a higher dosage than called for so that extra portion can be sold or abused

However, drug diversion is not the only thing that can trigger a ketamine investigation. Regulators may be targeting you for:

• Billing fraud
• Prescription fraud
• Other violations of federal law

4. Can I Go to Prison?

It depends on the nature of the investigation and what it uncovers, but yes, cases involving ketamine can lead to felony-level drug charges. 

For example, if you are found to have committed drug diversion with ketamine, you could be charged with unlawful possession of a controlled substance, also known as drug possession, if you diverted ketamine for your personal use. If you diverted the drug in order to sell it, though, you could face charges for possession with intent to sell, or even for drug trafficking. These are all crimes. Depending on the amount of the drug at issue and on many other factors, you could be facing up to decades behind bars.

These are worst case scenarios, though. Being under investigation does not automatically mean that you are going to prison.

5. What Can I Do to Protect Myself?

The most important thing that you can do to protect yourself is to hire a criminal defense or healthcare defense lawyer with experience handling these sorts of investigations. If you work at a healthcare provider, get your own lawyer and do not use theirs: Your employer’s attorney works for the company, and if it would benefit the company to try to blame you then he or she will do just that.