Why Is the DEA Going After Veterinarians??

DEA registration authorizes a healthcare provider (HCP) to handle controlled substances. The state license remains a separate requirement, and a veterinarian must hold a valid one to practice. Veterinarians are among the HCPs who may require DEA registration to practice, as they need substances to provide palliative care, pain relief, and other forms of care for their patients.

The DEA is a federal law enforcement agency that addresses trafficking and illegal distribution of controlled substances. DEA is the primary agency for federal enforcement actions, and it handles cases involving violations of the Controlled Substances Act. This includes both large-scale cases involving cartels and smaller-scale cases involving pharmacies, physicians, and other HCPs. DEA’s Diversion Control Division is specifically charged with addressing diversion of controlled substances. ‘Diversion’ is the process by which prescription medications make their way from their legitimate sources through DEA-regulated channels to end-users for unlawful purposes. When targeted by the DEA, veterinarians may face allegations that Oxycodone, Morphine, and Hydrocodone, for example, have been diverted from the veterinarian’s practice to the public, which triggers DEA’s investigative authority.

While this is entirely different from liability from a malpractice lawsuit, it is no less threatening. The DEA is a federal law enforcement agency, and it can pursue criminal penalties if warranted. However, in many cases, a DEA investigation is focused on obtaining an administrative or civil remedy. With that said, it can still threaten a veterinarian’s DEA registration and, in many cases, their state-issued veterinary license. This threat alone can devastate a veterinarian’s practice, and without experienced defense counsel, DEA is not bound to consider the veterinarian’s role as a licensed and respected member of their community.

How might DEA investigators identify a veterinary practice?

DEA investigations may involve allegations of violations regarding recordkeeping, security, inventory, dispensing practices, and diversion. Whether DEA investigators are assessing a veterinarian’s compliance with the Controlled Substances Act or diversion from the veterinarian’s practice to unlawful use, there are five ways in which DEA may identify a veterinary practice.

• Data Analytics: DEA’s Diversion Control Division has access to vast amounts of data. This data-rich environment allows for targeted data analytics, and it means that DEA can look for prescription outliers, like those who appear to be prescribing oxycodone and morphine too liberally. DEA agents can then use this data to target pharmacies, physicians, and other HCPs for criminal enforcement.
• Unannounced Inspections: According to DEA’s handbook, “DEA inspectors may either go without a warrant in order to inspect for compliance with the requirements of the CSA, or the DEA may obtain a warrant if deemed necessary.” These unannounced regulatory inspections are conducted by the Diversion Control Division for the purpose of ensuring compliance. As a result of these inspections, DEA agents may need to conduct further investigations.
• Search Warrants: DEA agents can apply for and execute search warrants, issued by an authorized judge, to enter a veterinary practice and seize a veterinarian’s practice records, computer hardware, and mobile devices. For example, if agents find Evidence of “pill milling,” they could use the discovered information to justify a DEA prosecution, or they could use the information to justify continuing to target certain physicians, pharmacies, or other HCPs.
• Confidentially-Informed Investigations: The DEA is a federal law enforcement agency, and it has many resources, including confidential sources. In many cases, the DEA may target HCPs through tips from former employees, and this information is then used to conduct DEA investigations and seize documents as evidence to be used in DEA enforcement proceedings.

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Which deadlines control a veterinarian’s response to an Order to Show Cause?

The DEA has issued Orders to Show Cause to many HCPs who are being targeted for criminal investigations targeting controlled-substance diversion. A DEA Order to Show Cause initiates administrative proceedings seeking either the suspension or revocation of the HCP’s DEA registration and must explain why the registration action is proposed, and also provide the registrant with the opportunity to challenge DEA’s action. The specific requirements set forth in 21 C.F.R. § 1301.37 provide that an Order to Show Cause must state the legal basis for the proceeding and summarize the matters of fact and law asserted.

A registrant generally has 30 days after service of the Order to Show Cause to request an administrative hearing. Instead of requesting a hearing, a registrant may elect to waive the hearing and submit a written statement explaining why the registration action is not warranted.

Ignoring a DEA Order to Show Cause can lead to a default final order without the opportunity for the registrant to defend against DEA’s allegations. When a registrant chooses to attend an administrative hearing, it will be presided over by a DEA administrative law judge (ALJ). The ALJ will hear evidence from the registrant’s counsel and from DEA’s attorney. After the hearing, the ALJ will issue a report containing a recommended decision.

Within 20 days after being served with the presiding officer’s report, a party may file exceptions to the recommended decision with DEA. DEA’s final decision will be the result of the ALJ’s proposed decision, though DEA may decline to adhere to the ALJ’s proposed decision. If DEA’s final decision includes registration suspension or revocation, a registrant may seek judicial review in the appropriate United States Court of Appeals. A registrant may seek review of DEA’s final decision in the appropriate United States Court of Appeals by filing a petition for review within 30 days after notice of the decision. All of these deadlines, including those that occur before and after the hearing, trigger the need for the registrant to engage an experienced DEA defense lawyer to represent the registrant throughout the duration of the administrative proceedings.

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What professional consequences can DEA action trigger?

After the DEA administrator makes a final decision, if a final decision is published in the Federal Register, it generally may not become effective until not less than 30 days after publication in the Federal Register. If federal-court review is warranted, the review cannot be initiated until the DEA enters a final administrative decision and a final order is rendered for the proposed action. The review of a DEA registration action includes assessing whether the Attorney General’s findings of fact are supported by substantial evidence. While federal-court review is a possible option, an appeal to a federal court is not usually recommended for HCPs unless there is a clear issue that warrants a federal court’s attention.

Along with administrative proceedings, the DEA has the authority to seek negotiated settlements. In many cases, the DEA seeks to resolve alleged violations of the Controlled Substances Act without the need for lengthy hearings, appeals, and further federal court litigation. In these cases, DEA investigations may result in a DEA Form 104, through which the veterinarian or other registrant voluntarily surrenders the DEA registration or controlled-substance privileges. For example, a Colorado veterinarian agreed to pay $226,000, surrender his DEA registration, and permanently relinquish his Colorado veterinary medicine license. The veterinarian’s proposed surrender was due to his “prescribing controlled substances without legitimate medical purposes in usual or customary practice,” he improperly received controlled substances, and, “as a veterinarian, failed to adequately maintain an inventory of opioid narcotics in his practice, resulting in DEA finding that significant amounts of controlled substances were diverted.” Another Georgia veterinary-clinic owner paid $90,000 in a settlement with DEA for alleged recordkeeping violations announced on October 26, 2016. If a veterinarian continues to practice without a DEA registration, he or she is subject to additional DEA enforcement actions that may include DEA-enforced registration suspension or revocation of controlled-substance credentials.

A registration suspension or revocation can have profound effects on a veterinarian’s ability to lawfully handle controlled substances, which can lead to lost earnings, a loss of professional standing in the community, and an end to the practitioner’s career. If targeted by the DEA, veterinarians must understand the risks of DEA prosecution, the risks of administrative license revocation, and other potential consequences that can result from DEA investigations. In order to protect themselves and their practice, veterinary doctors must consult with experienced DEA defense counsel.

How Does Malpractice Litigation Differ from Federal DEA Enforcement?

While there is no comprehensive national data establishing the exact frequency of DEA investigations targeting veterinary practices, or determining whether there is an increasing or decreasing trend in enforcement, the nature of these cases differs significantly from medical malpractice litigation. Importantly, a DEA administrative proceeding is fundamentally different from a malpractice lawsuit. Malpractice claims typically arise from allegations of negligence or professional errors that harm a patient, with plaintiffs seeking civil damages in state or federal courts.

In contrast, DEA investigations are initiated by federal enforcement agencies focusing on compliance with the Controlled Substances Act. These matters seek remedies related to a practitioner’s DEA registration or, in some cases, involve federal criminal charges. The intent of the enforcement action is not compensation for alleged malpractice but rather the preservation of public safety and the integrity of controlled substance regulation.

The lack of comparative national statistics means we cannot say with certainty whether the probability of being targeted by the DEA is higher, lower, or even the same as the probability of being sued for malpractice. Similarly, there is little public data assessing the viability of lawsuits against veterinarians compared to other healthcare providers like pharmacists or physicians. What remains clear is that the risk profile for a DEA investigation is entirely different from the risk of malpractice liability. The consequences, such as registration suspension or revocation, can have direct implications for professional licensure and the continued viability of a veterinary practice, independent of any liability concerning patient care. For these reasons, veterinarians facing DEA scrutiny need specialized legal defense that focuses on federal administrative and criminal law rather than civil tort law.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.