How the DEA Gathers Evidence against Doctors, Pharmacists, and Medical Practices
The Drug Enforcement Administration (DEA) is probably best known as the enforcement arm for the national war on drugs the federal agents who orchestrate drug busts in cities all around the country.
But the DEA is also one of the principal agencies responsible for regulating the American health care industry. As part of the Department of Justice, the DEA is integral to the government’s effort to punish and prevent fraud, waste, and abuse in federal health care spending programs.
If you own or operate a health care company that manufactures, dispenses, or administers medications governed by the Controlled Substances Act, your organization is subject to DEA regulation. This includes most hospitals, medical clinics, pain management facilities, pharmacies, and doctor’s offices.
But the DEA doesn’t just regulate your business. It monitors it, too. Actively. Even if you aren’t aware of it.
The DEA is looking for any indication that your business might be handling controlled substances improperly, or that you might be submitting false claims for payment to the government or engaging in any other kind of health care fraud.
Unfortunately, the agency’s review process is overly broad by design. It selects many health care providers for further review. And once a review is underway, it isn’t uncommon for DEA agents to find one or more “red flags” of potential wrongdoing.
Even if your business hasn’t actually broken any rules, once a red flag pops up, you could be looking at a costly and invasive DEA investigation. And federal investigations always bring with them the very real threat of legal jeopardy for the individuals, professionals, and owners involved.
If you work in the health care industry, you should understand the different kinds of DEA search warrants, the DEA’s process for conducting audits and investigations, and your rights and responsibilities therein.
Below, we provide an overview of the DEA search warrant process. But if your business has already been contacted by any federal law enforcement agency, you should get in touch with an experienced health care defense attorney right away.
The Initial Contact
DEA agents aren’t obligated to contact you or your business before proceeding with an inspection or investigation, but doing so can work to their advantage.
Federal agents of all kinds are trained to downplay the nature of their inquiries when making contact early on in an investigation. They may seem friendly and reassuring, playing the whole thing off as routine, unimportant, and “not a big deal.” Their hope, of course, is that they can catch you off guard and get more information than they would with a warrant in play.
If the DEA is thinking about building a criminal case against you, or if it is working with other agencies toward the same, it will need to have some evidence to support a criminal search warrant (more on that below). By making informal contact early on, they can take their first steps toward a showing of probable cause.
You should treat any and all contact with federal agencies very seriously. Assume that the conversation could lead to civil enforcement and/or criminal investigation. Be cautious, say as little as possible, and avoid self-incrimination. It’s a good idea to consult a health care defense lawyer immediately after being contacted by the DEA.
The Notice of Inspection
Even though the DEA is a law enforcement agency, it is allowed to conduct routine inspections of registered health care providers and businesses (sometimes referred to as audits) to ensure compliance with the Controlled Substances Act.
Inspections can happen with very little notice. DEA agents may show up at your office unannounced, holding a Notice of Inspection (DEA Form 82) in hand.
In most situations, the DEA is required to get your informed consent to the inspection before proceeding. If you decline to consent, the agents will have to get an administrative search warrant (see below) before conducting the inspection.
(Note: there are some limited situations in which the DEA can proceed with a warrantless inspection even if you do not consent to the DEA Form 82 notice.)
Whether or not you should consent to a DEA Notice of Inspection is a question of legal strategy. The right answer depends heavily on the facts and circumstances of your situation, so you should talk to an experienced health care defense attorney as soon as possible.
Administrative DEA Search Warrants
Administrative search warrants are different from criminal search warrants (which we cover in the next section). By comparison, administrative warrants are much easier for the DEA to secure.
That’s because administrative DEA search warrants do not require a showing of probable cause. Agents must make their request for the warrant in federal court, but the U.S. District Courts grant these requests freely.
With an administrative warrant in hand, the DEA can proceed with its inspection whether you consent or not. Refusal to cooperate is grounds for arrest.
Probable Cause DEA Search Warrants
If the DEA is investigating you with an eye toward criminal prosecution, or if it is working with any other law enforcement agency as part of a criminal investigation, then it must obtain a formal search and seizure warrant. The administrative search warrant will not suffice.
In this case, agents will have to show probable cause for believing that a crime has been committed (or is being committed) or that there is evidence of a crime in the location to be searched. They will also have to tell the court exactly what they’re looking for and which items they might take.
This is the most serious kind of DEA search warrant.
What the DEA Looks for Once It Has a Warrant
In most cases, the DEA is looking for evidence of:
- Health care fraud (e.g. false claims, fraudulent billing, illegal kickbacks, etc.), or
- Illegal drug activity (e.g. illegally selling drugs, drug diversion, etc.), or
Agents typically focus on reviewing and/or seizing your records (whether physical or electronic), but search and seizure warrants sometimes target other kinds of evidence too.
The scope of the inspection or search depends on the warrant. It is not uncommon for DEA agents to unlawfully exceed the limitations of their search warrant. Health care providers should have a clear understanding of what federal agents can and can’t ask for (or seize) when on your premises. We urge you to talk carefully with a health care defense lawyer about the particulars of your medical practice.
Interviews and Statements
Whether they have a warrant or not, federal agents will usually try to interview people during an inspection or search, particularly those who work with or for your practice. The nature of the interaction might range from a casual conversation to a recorded statement. Here again, it is imperative that neither you nor your employees make careless or unwitting statements to the government.
Anyone talking to a DEA agent should have legal representation. Assume that every question is designed to trip you up and that every answer you give will be used against you in order to bring criminal charges against you.
What Happens Next?
Depending on what the DEA finds with its search warrants, it has various manners of recourse available to it, including:
- Noncompliance reports
- Administrative discipline
- Civil enforcement actions
- Referring your case to the state licensing boards for possible suspension or revocation
- Referring your case to the DOJ, OIG HHS, state law enforcement, or other government agencies for further investigation and/or criminal prosecution
As health care defense attorneys, it is our goal to avoid all of these consequences, often by intervening in the investigation as early as possible.
Facing a DEA Search Warrant? Contact The Criminal Defense Firm Immediately.
If you are concerned that the DEA might want to investigate your medical practice or health care business, you should get legal representation on your side as soon as possible. The health care defense attorneys at The Criminal Defense Firm have extensive experience in protecting medical providers from the DEA. Please call us right away: 866-603-4540.
Dallas Medical Defense Lawyers The Criminal Defense Firm Primary Office in Dallas, TX.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.