NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 2nd October 2023, 05:50 pm
A Guide to DEA Search Warrants and Administrative Subpoenas
A criminal search warrant is obtained by the DEA from a federal judge, and it authorizes the DEA to search a provider’s premises for evidence of criminal activity. A criminal search warrant is usually obtained after the DEA has already conducted an investigation and has probable cause to believe that a provider has committed a crime.
An administrative inspection warrant (or administrative search warrant) is obtained by the DEA from a federal magistrate judge, and it authorizes the DEA to conduct an inspection of a provider’s premises for evidence of non-compliance with the Controlled Substances Act. An administrative inspection warrant does not require probable cause, but it does require that the provider be licensed by the DEA to administer, dispense, or prescribe controlled substances.
If you are being investigated by the DEA, you should consult with an experienced healthcare attorney as soon as possible. An attorney can help you understand your rights and options, and can help you protect your interests throughout every stage of an investigation.
DEA Search Warrants
The DEA can also enter your premises without a warrant if you consent to the search. However, you should not consent to a search of your premises unless you have consulted with an attorney first. If the DEA does not have a warrant or your consent, it may still be able to enter your premises if it has “exigent circumstances.” Exigent circumstances are emergency situations where the DEA believes that evidence of a crime is in imminent danger of being destroyed.
If the DEA does not have a warrant, your consent, or exigent circumstances, it may still be able to enter your premises if it observes illegal activity taking place in “plain view.” For example, if the DEA sees illegal drugs in plain view, it can seize the drugs without a warrant.
Once inside your premises, the DEA will conduct a search for evidence of healthcare fraud involving controlled substances. The DEA will also seize any controlled substances that it finds. The DEA may also seize records, computers, and other items that it believes are evidence of healthcare fraud.
After the search is completed, the DEA will provide you with a “Notice of Seizure and Forfeiture.” This notice will list all of the items that were seized by the DEA. The notice will also inform you of your right to contest the seizure in federal court.
If you are under investigation by the DEA or if your premises have been searched by the DEA, you should immediately contact an experienced healthcare fraud defense attorney. An attorney can help you protect your rights and contest any improper actions taken by the DEA.
DEA Administrative Subpoena Lawyers
One way the DEA can obtain information from a healthcare provider is by issuing an administrative subpoena. An administrative subpoena does not require the provider’s consent, and is therefore a much more powerful tool for the DEA. In order to issue an administrative subpoena, the DEA must have “reason to believe” that evidence of a violation of the CSA is located at the target premises.
The DEA has recently been using administrative subpoenas to target healthcare providers who have received civil investigative demands (CIDs) from OIG in connection with a potential False Claims Act violation. This strategy is based on OIG’s authority to refer potential FCA violations to DEA for investigation under section 604 of the CSA.
In 2014, OIG issued a report detailing its use of this authority, which it had used in connection with over 50 investigations between 2010 and 2013. The report identified several benefits associated with referring potential FCA violations to DEA for investigation, including:
- Increased access to evidence – In addition to having access to information about controlled substances that would not be available through other means, DEA also has access to information about controlled substances that would be protected by HIPAA if obtained by OIG through other means. This increased access allows OIG investigators to obtain information about both legitimate and illegitimate prescribing practices more quickly than if they were relying solely on OIG’s subpoena power.
- Increased leverage – Because providers are required by law (under section 309 of the CSA) to cooperate with administrative inspections conducted by DEA agents, providers may feel compelled to cooperate with an inspection even if they do not want their records reviewed or their employees interviewed. Additionally, because federal law prohibits healthcare providers from retaliating against employees who cooperate with an inspection conducted under section 309 of the CSA (under section 310), providers may feel less inclined than usual when dealing with an inspection conducted jointly by OIG and DEA agents. These factors can increase both compliance and cooperation among targeted healthcare providers during an investigation conducted jointly by OIG and DEA agents.
- Increased efficiency – Because both agencies are investigating potential FCA violations involving controlled substances at the same time as part of a joint effort, there is no need for either agency (or any other federal entity) to investigate these potential FCA violations separately at some point in the future as part of another investigation or civil action involving controlled substances under another statute or regulation. This can save significant time and resources for all involved parties over time as well as ensure that potential FCA violations involving controlled substances are investigated thoroughly in one fell swoop rather than being investigated piecemeal over time as part of multiple separate investigations or civil actions involving different statutes or regulations.
It is important to consult with an experienced healthcare attorney if you receive an administrative subpoena from the DEA. An attorney can help you navigate the legal process and protect your rights throughout the investigation.