The Drug Enforcement Administration (DEA) has long been one of the federal government’s top assets in its fight against health care fraud. While most people think of the DEA as the agency responsible for fighting the war on drugs (and this is certainly one of its top priorities) the DEA is also heavily involved in the government’s efforts to combat waste, fraud, and abuse in the Medicare, Medicaid, Tricare, and Department of Labor (DOL) health care benefit programs.
If you own or operate a company or medical practice that manufactures, sells, dispenses, or administers prescription medications, your business is regulated by the DEA. It is also monitored by the DEA on an ongoing basis. Like the Department of Health and Human Service’s (DHHS) Office of Inspector general (OIG) and other federal law enforcement authorities, the DEA routinely reviews the billing data of medical providers. They also conduct audits and inspections to uncover potential signs of fraud. In many circumstances, these routine and automated review practices will identify “red flags” even where a provider has not actually done anything wrong. And a red flag even a baseless one can trigger an invasive, costly, and potentially-dangerous DEA investigation.
What Pharmacists, Physicians, and Other Providers Need to Know about DEA Investigations
If someone in your business or practice has been contacted by an agent from the DEA either by letter or in person you need to understand the potential severity of your situation. Federal agents will often attempt to downplay their inquiries in order to solicit voluntary disclosures of information, not letting on that providers are facing possible civil or criminal penalties as the result of a federal investigation. Once the DEA makes contact with your office, here is what you can expect as the investigation moves forward.
1. The Notice of Inspection (DEA Form 82)
Most DEA investigations start with the presentment of a Notice of Inspection (DEA Form 82). If a DEA agent shows up at your office with a Notice of Inspection, the agency cannot conduct a physical investigation of your premises unless you give informed consent. Giving informed consent means that:
- You have been informed of your Constitutional right not to submit to an inspection.
- You understand that any incriminating evidence found during the investigation can be used against you in court.
- You voluntarily agree to let the DEA review your records and search your premises.
Should you give informed consent? This is a critical question that you will need to discuss with an experienced DEA defense attorney.
2. Search Warrants
If you refuse to give informed consent when handed a Notice of Inspection, the DEA must obtain an administrative search warrant in U.S. federal district court before conducting its investigation. Unlike search warrants in criminal cases, the DEA does not need probable cause in order to obtain an administrative search warrant, and requests for these warrants are routinely granted.
If your investigation is criminal in nature, the DEA may also seek to enter your business premises on a search warrant obtained with probable cause. Criminal investigations carry the potential for severe penalties, including federal incarceration. So if you have been presented with a search warrant it is imperative that you speak with an attorney as soon as possible.
3. Review of Medication, Patient, and Billing Records
Once you give informed consent or the DEA obtains a search warrant, agents may enter your pharmacy, clinic, medical practice, or other health care facility and begin reviewing your records. Typically, agents are looking for evidence of either (i) billing fraud, (ii) illegal dispensing of prescription medications, or (iii) both.
While the DEA has broad authority under Notices of Inspection and searches warrants, its powers are not absolute. Providers must have a clear understanding of what they are? and aren’t? required to disclose, and they should work closely with their attorneys to ensure that the DEA does not exceed the scope of its investigatory powers.
4. Interviews with Executives and Staff
In addition to reviewing your records, DEA agents may also seek to interview you and other key personnel. This would be people at your practice who have involvement in, or knowledge of, your prescription-related activities and federal benefit program billings. Here, too, it is crucial to ensure that you and your staff do not unwittingly and unnecessarily disclose potentially damaging information. Anyone being interviewed should have legal representation and should understand that the investigator’s questions are designed to solicit information that can lead to civil or criminal charges.
5. Noncompliance Reports, Administrative Action, and Department of Justice (DOJ) Prosecution
If the DEA finds evidence of violations of the Controlled Substances Act (CSA), it will issue a noncompliance report outlining the various issues that require resolution. In addition, it may take administrative action against your DEA registration (i.e., suspension or revocation), and it can also refer your agency to the Department of Justice (DOJ) for civil or criminal prosecution. The DEA may also refer your case to the DOJ, OIG, or another federal agency for further investigation and possible prosecution of other federal health care law violations.
Meet Our DEA Defense Team
At Oberheiden, P.C., we provide experienced legal representation for health care providers facing DEA investigations. Our team of DEA defense attorneys includes:
- Dr. Nick Oberheiden Dr. Oberheiden focuses his practice on health care fraud defense and has significant experience in DEA investigations.
- Lynette S. Byrd Ms. Byrd is a former federal prosecutor with extensive experience in DEA, OIG, and DOJ drug and health care matters.
Contact Our Experience Team About Your DEA Investigation
If you are facing a DEA investigation, or if you are concerned about a potential issue leading to an inquiry from the DEA, we encourage you to contact us promptly for a free case assessment. To discuss your situation with a member of our DEA defense law team in confidence, please call (888) 452-2503 or request an appointment online today.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.