DEA Investigations and Audits
The Drug Enforcement Agency is an arm of the Federal government that investigates and monitors drug trafficking and drug crimes. The DEA focuses both on the “Breaking Bad” kinds of criminal (major drug traffickers of street drugs) as well as doctors or pharmacies who illegally prescribe opiates. If you receive notice of a DEA inspection or audit, you should seek out legal counsel immediately.
The DEA will issue audits for a number of reasons, including tips regarding a question of pharmacy practices of prescribing drugs, deviations from typical patterns in prescribers as compared to the market as a whole, or even random audits to ensure compliance across the country. DEA audits are fairly common, with inspections happening every three years or so, depending on the kinds of drugs they prescribe.
The DEA does not need a warrant for a compliance investigation, unless the DEA is also participating with other agencies concerning a criminal investigation (such as with the FBI). Then, the DEA is required to have a search warrant to carry out their search. The inspection starts when a DEA Form 82, a search warrant, or an administrative warrant is presented prior to the inspection.
In the event a DEA Form 82 is presented to a DEA registrant, they must provide informed consent by signing a written statement which states they have been informed of their constitutional right not to have the administrative inspection, that anything incriminating can be used against the registrant, and they are giving their voluntary consent to the investigation or search. Unfortunately, if the DEA registrant is presented with an administrative or search warrant, informed consent is not required – the DEA typically comes with the power of the court authorizing these searches, and can execute their search over vehement objections of the DEA registrant (or subject of the investigation). If you do not comply with the warrant, you could be arrested.
Seeking legal advice as soon as you receive notice of an audit is crucial, because if you do not give your informed consent, the situation will likely only escalate. An attorney can advise you if you should give informed consent to the audit, and develop a strategy in the event you do not. If the subject refuses or fails to give informed consent to the audit, then the DEA must obtain an administrative inspection warrant from a federal court. No probable cause is required for an administrative warrant – just a description of the inspection and any items that the DEA wants to find or seize.
The scope of the investigation is limited by the administrative search warrant, which does not give full authority of the DEA to inspect everything within the pharmaceutical or medical practice. Courts are split as to whether the DEA can examine patient records under these kinds of warrants. Further, the DEA can speak to your or your staff, in which case, as expected, ‘anything said or done can be used against you in a court of law.’ Therefore, it is rational to decline to speak to a DEA agent without the presence of an attorney.
Even though Form 82 investigations are regular, it is always a good idea to have legal counsel on retainer to advise you as to how you should answer and whether you should give informed consent to the information that the DEA is seeking within its search. Act promptly upon notice, so that attorneys can help protect your rights immediately.