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The Drug Enforcement Agency investigates and monitors drug crimes and trafficking. Typically the agency focuses on major drug trafficking and doctors or pharmacies suspected of illegally prescribing opiates. If you have received a DEA inspection or audit notice, you should seek legal counsel from an attorney immediately on your DEA audit.
Unlike conducting a search for a criminal proceeding, the DEA is not required to have a search warrant for an inspection that is to determine whether your practice is compliant with the Controlled Substance Act. DEA Audit’s are very common and happen with little to no warning.
However, if other agencies are involved with the same criminal investigation, in order to do an audit, the DEA needs a warrant to search your practice or clinic. Once an administrative inspection warrant is presented, you must consent to the inspection.
In a DEA audit, if DEA inspectors present DEA Form 82, you must give informed consent before the audit or inspection can begin. This is a written statement from you affirming that you were informed of your constitutional rights not to agree to the administrative inspection.
Through this statement, you are also affirming your awareness that if anything of incriminating nature is found, it can be used against you during a criminal prosecution.
In some cases, an informed consent is not needed for the DEA to conduct the inspection, even without an administrative search warrant (more on this below). This occurs when:
• You are applying for an initial DEA registration
• There is a DEA audit related issued subpoena to inspect books and records
• There is imminent danger to public safety and health
• The opportunity to apply for a warrant does not exist
To do the DEA audit, the agency must obtain an administrative inspection warrant if you refuse to give informed consent for an audit. Unlike the search warrant, the DEA is not required to show probable cause for the administrative search warrant.
To obtain this warrant for an inspection, the agency is only required to describe the nature and extent of why it needs to search your facility. The explanation should also include items the agency wishes to seize. This type of warrant is routinely granted.
You must comply if in the audit, the DEA presents an administrative search warrant. By refusing, you could be arrested. If you have received an administrative search warrant, you should contact your DEA investigation and audit attorney immediately.
An attorney who is experienced in these matters can give helpful guidance that will protect you, your health care practice and your DEA registration.
In addition to determining compliance with the CSA, there are several reasons for the DEA to audit and inspection healthcare practitioners and pharmacies. Some include:
• Investigating a tip from a patient or pharmacy about prescription practices
• Investigating possible deviations from prescribing patterns compared to others
• Random investigations to ensure practitioners are compliant
The DEA does not have the authority to inspect everything on the premises simply because it has an administrative search warrant. The law limits what can be inspected. There might be attempts to interview you or your employees.
Legal experts strongly advise against answering these questions when there is a criminal or administrative proceeding. To avoid a possible trap when the agency attempts to exceed the scope of the search warrant, you should immediately contact your attorney.
If noncompliance is found following a DEA audit, the agency issues an audit report that details the areas deemed to be noncompliant with the CSA. When noncompliance is found, the matter could be referred to the Department of Justice for criminal prosecution. An alternative is the DEA will take administrative action against your DEA registration.
Raiser & Kenniff, PC is dedicated to helping pharmacies, practitioners, distributors and other registrants with a DEA registration. We know that keeping this registration in good standing is critical to you delivering care to patients. We can help with all aspects of DEA investigations.
Our experience in defending DEA registrants during an investigation and in subsequent actions is based on knowing helping many clients throughout this process. Not only are we here to protect your DEA registration, but to also ensure your career, other professional licenses and reputation remains unharmed. WE handle all aspects of your DEA audits.
Allegations and investigations of noncompliance, as a result of a DEA investigation, can have negative consequences. You worked hard to get your license and establish a career caring for others. Let us help you keep it.
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The DEA is authorized by the Controlled Substances Act, in order to inspect physicians. The DEA inspectors will come to your office and identify themselves – if this happens, you should contact our DEA attorneys immediately. They are required to present their badge. The inspector will ask the physician to sign a notice of inspection before going through with the audit. The notice will have the physician’s Statement of Rights on the notice. It’s recommended at this stage, you review your rights – and call a DEA attorney who can help you navigate the DEA audit.
The inspector is required to ask you to sign a Notice of Inspection before going through with the audit. The inspector can ask you for the following items:
You should treat each day like a day when you could be facing a DEA investigation requiring a DEA lawyer’s help. Ensure you’re in compliance with the items above every day, and all documents are always available. If the day of your DEA Audit comes, notify your staff that the DEA is authorized to audit all the physicians. All DEA inspectors are trained to conduct audits and DEA investigations efficiently, and both your staff and you should expect efficient and amicable behavior from the DEA audits. Your staff is allowed to oversee the inspection. You should identify 1-2 people who can oversee the inspection, and are prepared to deal with it. You should allocate a space in your office where the inspectors and your staff can do the audit in private.
Unlike criminal cases, the DEA doesn’t need a search warrant to conduct a DEA inspection in order to determine if you’re in compliance with CSA. If the DEA is participating in a criminal investigation with other agencies, then they must have a search warrant to search the clinic. DEA inspections and audits are done by DEA diversion investigators, and are a part of the DEA’s diversion control program. DEA audits will begin when a DEA form 82 (Notice of Inspection of Controlled Premises), or a administrative inspection warrant is presented to a physician before the inspection as a part of the DEA investigation. When presented with this form, you should call our DEA lawyers immediately.
If form 82 is presented, then the physician is required to give informed consent before the DEA audit/inspection begins. Informed consent is essentially a written statement by the provider that he/she has been informed of his/her right not to have an administrative inspection – and that anything of an incriminating nature can be used against the physician in a criminal case – and that the physician voluntarily consents to the search.
Depending on the situation, the DEA may not need informed consent in order to conduct an inspection without an administrative search warrant. An administrative search warrant isn’t needed for healthcare providers who are applying for their initial DEA registration, or for inspection of books + records according to a administrative subpoena that is issued due to the DEA’s subpoena power, or for administrative inspections where the DEA feels there’s an imminent danger to the public health and safety.
If you refuse to give informed consent to the DEA for an audit, then the DEA will get an administrative search warrant from a federal court. Unlike search warrants, administrative inspection warrants don’t require the DEA to show probably cause. Instead, to get an administrative search warrant the DEA needs to simply describe the nature + extent of the inspection, and any items they are looking to seize. Courts routinely grant administrative search warrants without much issue.
If the DEA presents an administrative search warrant to conduct an audit for a DEA investigation, or inspection, then you must comply. If you refuse to comply, then this is grounds for arrest. If you receive a DEA administrative search warrant, then you should consider calling one of our DEA attorneys immediately. We are experienced in handling DEA audits and enforcement actions and can give you immediate help.
There are a few reasons why a DEA registrant may refuse to give informed consent even though the DEA will get an administrative search warrant. First, the DEA does inspections without warning, and you may want to contact your attorney before the DEA audit begins. We recommend healthcare providers who receive an administrative subpoena or DEA form 82 to contact us ASAP. We can help ensure the DEA doesn’t go over the scope of their warrant/parameters.
Administrative search warrants don’t give the DEA the right to inspect every single thing in the practice. The statute limits what the DEA is allowed to inspect. The DEA can try to interview you, or your staff as a part of the DEA investigation. Any information that’s offered to the DEA can be used against you – which is why we recommend contacting our attorneys before speaking to the DEA. We can help ensure your rights are protected.
Following the DEA audit, and DEA investigation, if noncompliance is determined – then the DEA will issue a DEA audit report which details the issues that they found. If noncompliance with the CSA is found, then the DEA will refer the issue to the Department of Justice for criminal prosecution – and in addition, may take administrative and civil actions against the practitioner/facility. Our DEA lawyers can intervene at this stage, in order to help protect you, and your practice.