The opioid epidemic has yet to relent, and the federal government has made clear that it’s doing everything it can to put a stop to it. To be sure, the government’s efforts are laudatory in theory. However, in practice, the federal government often casts an overly wide net, subjecting well-meaning and innocent physicians to burdensome audits—and potentially—harsh penalties. At the federal healthcare defense law firm of Oberheiden, P.C., our attorneys aggressively defend the interests of providers throughout DEA administrative audits. We have notable hands-on experience helping practitioners across all practice areas navigate these complex and high-stakes audits.
About the Drug Enforcement Administration
The Drug Enforcement Administration is the chief federal law enforcement agency tasked with combating drug trafficking and illegal drug distribution. As of 2021, the DEA employed over 9,800 employees, about half of which are special agents. In 2020, the DEA arrested 26,264 people for various drug-related offenses. Certainly, most of these were dealers and traffickers of illegal street drugs. However, it would be naïve to assume that doctors, pharmacists, and other healthcare professionals are beyond the DEA’s reach. Indeed, in 2021, the DEA brought formal charges against at least 47 doctors and other healthcare providers.
While the DEA has several divisions, it’s the Diversion Control Division that presents the greatest threat to healthcare practitioners. According to the DEA, the mission of the Diversion Control Division is “to prevent, detect, and investigate the diversion of controlled pharmaceuticals and listed chemicals from legitimate sources while ensuring an adequate and uninterrupted supply for legitimate medical, commercial, and scientific needs.” Thus, the Diversion Control Division oversees the distribution of legal but commonly abused drugs.
When Does to DEA Decide to Audit a Physician?
DEA administrative audits can occur in a number of situations. Generally, all physicians are subject to the occasional routine audit—usually every three years or so. Additionally, the DEA can initiate an administrative audit if it develops reason to believe that a provider is not complying with federal law. Some of the things that the DEA keeps an eye out for include:
- Physicians who sell prescriptions to drug dealers or drug-addicted individuals;
- Pharmacists who falsify records to sell drugs on the black market;
- Employees who steal from inventory and falsify orders to cover illicit sales; and
- Prescription forgers.
However, even if none of these apply to a particular practice, other issues can lead to an audit. For example, if your practice’s protocols are different than other providers in the same practice area, it may raise a red flag. Similarly, unusual business patterns, such as serving a significant number of out-of-state patients or keeping odd hours, may signal to the DEA that you’re engaged in questionable activity. And, of course, tips from other doctors, patients, pharmacists, or other providers are another common way DEA agents determine which practices they will audit.
It is important to keep in mind that the DEA is not merely looking for flagrant violations of the law. In fact, one of the most common violations during a DEA audit involves allegations that a practice failed to keep the appropriate records related to prescription medications. While this type of violation, on its own, is not likely to result in severe consequences, it will raise the suspicions of agents, prompting a more in-depth audit.
What to Do in the Face of a DEA Administrative Audit
When the DEA determines it is going to investigate a practice, it may provide very little notice of the audit, meaning doctors will have little time to prepare. Thus, it is essential for providers to have a plan of action that they can rely on in the event of an audit.
The first thing to keep in mind is that the DEA is a law enforcement agency. While DEA audits are termed “Administrative,” that is a bit of a misnomer, as an unfavorable audit can quickly turn into a criminal prosecution. However, because the DEA is acting in a law enforcement capacity, DEA agents must honor and respect the constitutional rights of the providers they investigate. This means that they cannot force you to speak with them. In fact, speaking with a DEA agent about anything of substance is usually unwise because, on one hand, anything you say to absolve yourself of any culpability will be seen as self-serving. On the other hand, any admission you make will certainly be used against you. Thus, the better approach is to enlist the assistance of an experienced DEA audit attorney to communicate with DEA agents on your behalf.
Additionally, as a law enforcement agency, the DEA cannot conduct an audit or any search of a practice without either a warrant or your express consent. Not surprisingly, DEA agents will often try to bypass the warrant requirement by asking providers to consent to an audit. While refusing consent prevents them from auditing your practice that day, it doesn’t stop agents from seeking either a traditional search warrant or the easier-to-obtain administrative inspection warrant. Of course, refusing a search or an audit is your right; however, if you refuse to consent to an audit, agents are going to be suspicious. Thus, it’s best to consult with a DEA administrative audit attorney prior to deciding whether to consent to an audit.
The final thing to note is that just because you don’t believe DEA agents will find any issues during the audit doesn’t mean you should open your doors to them. DEA agents tend to approach all audits as though there is something to find. Anytime this approach is taken, it subjects a practice to unnecessary risks. If you are facing a DEA administrative audit, don’t take any chances.
Frequently Asked Questions:
Why don’t we call ourselves the “best DEA administrative audit attorneys”?
At Oberheiden, P.C., we are confident in our ability to help physicians and other healthcare providers through DEA administrative audits and other investigations. However, you will notice that we don’t refer to ourselves as the “best DEA administrative audit attorneys.” There are a few reasons for this. First, we know that our clientele consists of sophisticated professionals who are not likely to be swayed by clever marketing language or statements that we can’t substantiate. Moreover, we believe that the term “best” is subjective and potentially misleading when used to describe an attorney. For example, who gets to decide what makes the best DEA administrative audit attorneys? Because we take our ethical obligations seriously, we do everything possible to avoid making any misleading statements. However, for those looking for the best DEA administrative audit defense lawyers, we believe that our track record speaks for itself.
Do I need a lawyer if the DEA is going to conduct an administrative audit of my practice?
Legally speaking, no, you do not need an attorney to represent you during a DEA administrative audit. However, given most providers’ unfamiliarity with the process, as well as the high stakes these investigations present, the majority of physicians elect to retain counsel. Doctors don’t hire lawyers because they are incapable of learning the nuances of the DEA administrative audit process, but because doing so would take their focus off of their practice. An attorney can seamlessly step in and guide practitioners through the process, limiting the risk of an unfavorable audit and allowing them to keep their focus where it belongs.
What is at stake in a DEA administrative audit?
In short, everything you’ve worked so hard for is at stake during a DEA administrative audit. While minor violations may result in a Letter of Admonishment, even this can carry serious consequences. This is because a Letter of Admonishment is retained by the DEA for future reference during subsequent investigations and audits. Thus, in the DEA’s eyes, a Letter of Admonishment is the first sign of a potential pattern. However, if DEA agents uncover evidence of a more serious violation, they may refer the case to the DOJ for criminal prosecution. Criminal cases stemming from a DEA investigation usually involve the DEA issuing an Order to Show Cause, which requires a doctor to go before an Administrative Law Judge explaining why their DEA registration should not be suspended or revoked. The Administrative Law Judge will render an opinion, forwarding it to the DEA, which can then accept, reject, or modify ALJ’s findings. At Oberheiden, P.C., we can effectively intervene at any stage in the DEA audit process to protect the rights of physicians.
How Oberheiden, P.C. Can Help Physicians Through a DEA Administrative Audit
While there may be nothing to hide during a DEA administrative audit, you cannot be certain that’s the case. At Oberheiden, P.C., we have a dedicated team of healthcare fraud lawyers on hand, ready to immediately work with physicians undergoing a DEA audit. Several of our attorneys formerly served in high-ranking positions within the federal government, including with the DEA. We have an in-depth knowledge of both the substantive laws and regulations that control these audits, as well as how they proceed in practice.
When you reach out to Oberheiden, P.C., we will waste no time in familiarizing ourselves with your practice. Because our federal healthcare fraud lawyers already have extensive experience in the industry, you won’t need to waste valuable time catching us up on the nuances of your specific practice area because, chances are, we’ve helped similarly situated providers through DEA audits. Once you bring us on your team, we will handle all communications with DEA agents and be there to ensure that auditors follow all guidelines to ensure a fair audit that is appropriately limited in scope. In the event auditors uncover something that resembles a violation, we can quickly shift gears to develop a strategic defense to whatever charges the DEA intends to refer to the Department of Justice or other federal prosecuting authority. Contact us today.