If you’re facing a DEA investigation, the best thing you can do is to consult with an experienced healthcare attorney who has handled these cases before. The sooner you get legal help, the better your chances of avoiding a DEA surrender.
In this article, we’ll talk about what happens when you surrender your DEA registration and how to avoid making this mistake.
What is a DEA Surrender?
When the DEA completes an investigation into your prescribing practices and determines that your registration should be suspended or revoked, they will issue a Notice of Opportunity for Hearing (NOOH). This notice gives you the opportunity to request a hearing before an Administrative Law Judge (ALJ) at the Office of Administrative Law Judges (OALJ).
If you decide not to request a hearing or if the ALJ finds that your registration should be suspended or revoked, then you will receive an Order to Show Cause (OSC) from the DEA. The OSC gives you 30 days to show why your registration should not be suspended or revoked. If you do not respond within 30 days, then your registration will automatically be surrendered and suspended or revoked by operation of law.
A voluntary surrender is different from an automatic surrender in that it occurs when you sign and return a “Voluntary Surrender Agreement” form provided by the DEA in response to their OSC. You may also choose to voluntarily surrender if they have already issued an order suspending or revoking your registration but have not yet begun proceedings against it.
Why You Should Avoid Voluntarily Surrendering Your Registration
There are several reasons why voluntarily surrendering your registration is generally considered bad advice:
You have rights
When you’re under the gun, it’s easy to forget your rights. It’s easy to feel like you have no choice but to answer their questions. But that’s not true. You have the right to remain silent, and you should exercise that right immediately.
The Fifth Amendment of the U.S. Constitution protects citizens from self-incrimination by guaranteeing them the right to remain silent when questioned by law enforcement officers about a crime they may or may not have committed. The Fifth Amendment also protects citizens from being forced to surrender evidence against themselves through self-incrimination.
The Fifth Amendment applies in civil cases as well as criminal cases, and it applies even if you are not a suspect in a criminal investigation—which is often the case when DEA agents come knocking on your door or call you on the phone asking questions about your practice and prescribing habits.
In many cases, physicians and healthcare organizations will voluntarily surrender their registration after being questioned by DEA agents because they fear that if they don’t, they will be arrested or otherwise penalized for exercising their Fifth Amendment rights and refusing to answer questions without an attorney present. This is simply not true—the Fifth Amendment does not protect citizens from arrest or penalty for exercising their constitutional rights; it only protects them from self-incrimination through forced testimony or evidence production against themselves in criminal proceedings (or civil proceedings with criminal consequences).
Of course, there are exceptions to this rule: If you are placed under arrest, you can be compelled to provide information related to your identity (such as your name) without violating your Fifth Amendment rights; if you are placed under oath in a deposition or trial setting, you can be compelled to testify about matters related directly to those proceedings; if federal investigators have probable cause that a crime has been committed and believe that information contained on your computer may help them solve that crime (e.g., child pornography), they can search your computer without violating your Fourth Amendment rights against unreasonable searches and seizures; etc., etc., etc…
But these exceptions do not apply in most situations where DEA agents come knocking on doors or calling offices asking questions about prescribing habits—in those situations, physicians are absolutely entitled by law (and protected by the Constitution) from answering any questions without an attorney present who can protect their interests and ensure that any information provided is done so accurately and completely so as not to create any misunderstandings or justifications for further investigation down the road…and yes, this includes whether or not they hold a valid registration with DEA!
The bottom line is that you have the right to remain silent when questioned by DEA agents about your prescribing habits. You have the right to have an attorney present when answering questions. You have the right to refuse to answer questions or surrender evidence against yourself. And you should exercise those rights immediately, without hesitation, and without fear of arrest or penalty for doing so.
If you are contacted by DEA agents asking questions about your prescribing habits, do not answer any questions without first consulting with an experienced healthcare attorney who can protect your interests and ensure that any information provided is done so accurately and completely so as not to create any misunderstandings or justifications for further investigation down the road.
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