Texas Medical Board, DPS, insurance companies all questions Diamond’s prescribing practices

Herald Democrat (Sherman, TX)

July 18--Dr. Howard Gregg Diamond was back Tuesday in the federal district courtroom at the Chase Bank building in Sherman in a hearing about his request to get out of jail on a personal recognizance bond. He left the building in custody of the U.S. Marshal's service.

Diamond was arrested last week on a laundry list of charges, including conspiracy to possess with intent to distribute controlled substances, money laundering and abetting, distribution of controlled substances and health care fraud, and aiding and abetting. The charges also link Diamond's prescriptions to the overdose deaths of seven people. Diamond has pleaded not guilty to all of the charges.

Magistrate Judge Christine Nowak told Diamond that if she needs additional information to make her decision, she will call everyone back to the courtroom. Otherwise, she said, she would issue an order in the case and she added that she is going to work very diligently to get the issues resolved.

Nowak explained to those present that she had called the hearing Tuesday because she had some unanswered questions about a number of the issues she must consider to decide if he gets out on bond or not. Those issues dealt with Diamond's home life, the passports found in his vehicle when he was arrested and just when he should have known that his prescribing practices were causing concern.

The questions, Nowak said, stemmed from testimony given in court last week and information found in the report prepared in anticipation of someone seeking pretrial release. That report includes answers that Diamond gave to questions about things like his marital status, where he would reside were he to be released and his access to things like a passport and finances.

Nowak asked Assistant U.S. Attorney Heather Rattan if she would agree that Diamond's attorney would be the best person for the judge to question regarding those issues. Rattan said she was fine with the judge asking what she needed to make her decision. However, Rattan pointed out, that the charges facing Diamond come with a presumption that he will remain incarcerated pending trial and Rattan thought that the defense had plenty of time to rebut that presumption at the previous detention hearing.

The judge said she understood that but she wanted to ask the questions "to make sure that I make the right (decision)."

Diamond's attorney Pete Schulte said Diamond is currently married to Jennifer Diamond and that they live in a house in Sherman. When Judge Nowak asked how many children Diamond has, Schulte said Diamond has three biological children with his former wife and has three stepchildren who live with him and Jennifer in the house on Schneider Road. Nowak then asked about Diamond's marital status because divorce proceedings had been initiated in another county in the names of Jennifer Diamond and Howard Diamond. Schulte said it is his understanding that the couple is not going forward with the divorce.

A domestic abuse call in Melissa

Judge Nowak also asked about the spouse identified in a police report about an incidence of family violence involving Diamond back in September of 2015. Schulte said he spouse Diamond was accused of hitting in that report was, in fact, his current wife Jennifer. Schulte said his client pleaded guilty to the charge of disorderly conduct and was given deferred adjudication which he successfully completed.

The Melissa Police Department report about that incident, which was obtained by the Herald Democrat through an open records request, said Diamond's wife Jennifer told police she and Diamond were in their bedroom when they began to argue about how Howard Diamond treated her children.

"Supposedly Gregg had struck Jennifer's son with a fishing rod because the boy had hit Gregg's son with a toy," the report said. Jennifer Diamond said the remark made Howard Diamond angry.

"He stood up, leaned over the bed and hit Jennifer on the left side of her face with his fist while screaming at her, 'You're homeless b--,'" the report quoted Jennifer Diamond as reporting to the police. She said the blow knocked her sideways and caused her to lose hearing in her left ear for a few minutes. She also said the left side of her face numb. She said she got her cellphone and told her husband she was calling the police.

At that point, she said, Howard Diamond grabbed the phone and broke it.

"Now you don't have a phone either," she said her husband told her. She then asked a third party who was in the room to make the call, the report says, and Howard Diamond pushed that person onto the bed and held her there. After wrestling with that person in an attempt to get the phone, the report said, Howard Diamond left the house.

She then asked a third party who was in the room to make the call, the report says, and Howard Diamond pushed that person onto the bed and held her there. After wrestling with that person in an attempt to get the phone, the report said, Howard Diamond left the house.

Is Diamond a flight risk?

The judge sought to clear up Diamond's passport status. She said she was unclear if authorities found an application for passport renewal for Diamond's passport in Diamond's car the day that he was arrested. DEA Agent Susannah Herkert testified that authorities found applications for renewals for passports for Diamond's three biological children in the car. She said she did not find an application for renewal for Diamond.

Schulte testified that his client does not currently hold a valid passport. Schulte said his client had the renewal applications because his ex-wife takes their children on a cruise every year and he was trying to get the passports ready for that.

Nowak asked Herkert if she thought that Diamond was aware, on the day that he was arrested, that his arrest was imminent. Herkert said it is her opinion that he should have known he would be arrested at some point.

To support that opinion, Herkert told Nowak that people who have spoken to the government about the activities at the DiamondBack Pain and Wellness Centers said Diamond gave the staff instructions about what they were supposed to do "if the DEA stormed the building." She said the instructions were they were supposed to let someone know.

Another point that Nowak seemed to be trying to clarify was Diamond's financial resources. He first asked the court to appoint him public defender when he was arraigned on July 11. The judge did that and then at his first detention hearing Diamond asked to have a retained attorney appointed to the case. Diamond told Nowak that his parents had retained Schulte. Tuesday, Nowak asked Herkert if the government thought Diamond had large amounts of cash secreted away. Herkert said it is their impression that other people in the business handled the money.

As to when Diamond should have known his prescribing practices were being questioned, Herkert said when DEA searched the Diamond clinics in Paris and in Sherman on May 19, she faxed a form to his attorney asking him to voluntarily surrender his prescribing credentials. She said Diamond was not at either of the clinics that day but she spoke with an attorney who described himself as Diamond's divorce attorney and that attorney gave her the fax number so she could send the form.

She said there were additional things that should have put Diamond on notice that his prescribing was being questioned. She said both the Texas Department of Public Safety and several insurance companies were questioning Diamond about his prescriptions as far back as 2015. Herkert said in June of 2015 the Texas Department of Public Safety questioned Diamond about reports it had received that a pharmacy had questioned a prescription that included a stamped signature instead of Diamond's handwritten signature. The investigating officer went to the clinic in Paris and was told that Diamond was at the Sherman clinic that day. The investigator went to Sherman and was told that Diamond had to leave because of hot water heater emergency at his home.

In a conference call in July of 2015, Herkert said, the DPS asked Diamond about those issues, but he said he would not answer those questions without a subpoena. Herkert said she has seen 100 letters from insurance companies drawing Diamond's attention to the high level of medication and combinations of medications being prescribed to his patients.

Additionally, Herkert said that Diamond received letters from the Texas Medical Board in February and in April advising him that they were investigating his prescribing practices. She said those letters did not include an admonishment that Diamond should stop prescribing medication, however.

Who has Diamond's prescribing credentials?

Diamond's credentials for e-prescribing, Herkert said, include a token and a password, and people investigators had talked to said Diamond had given those to another person to use to prescribe medications. She testified that she received phone calls from pharmacies that said they received prescriptions from Diamond that appeared to have been written after he had been arrested. She said there are seven of those prescriptions that she has heard about at this point.

Schulte then asked the DEA questions about alternatives that could have caused those prescriptions to arrive at pharmacies after Diamond was arrested that did not include Diamond giving his prescribing passwords to anyone else. Schulte said sometimes doctors prescribe a 90-day supple of medication but pharmacies will only fill up to 30 days of those prescriptions for the kind of pain medication Diamond was prescribing. He asked Herkert if those prescriptions could have already been in the system for people to finish out a 90-prescription, 30 days at a time. Herkert said it is her understanding of the system that the patients would need newly written prescriptions dated on the day they got them to finish out a 90-prescription.

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