Handling a DEA Audit and Investigation as a Healthcare Provider in California
It is common for a healthcare provider in California to experience a Drug Enforcement Agency (DEA) audit and investigation. Should any serious violations of the Controlled Substances Act (CSA) be detected, a healthcare prover could face everything from administrative actions to criminal prosecution. Many healthcare providers will want legal assistance during such an audit. An experienced attorney will know how to properly handle the process and provide important legal guidance.
Compliance
The audits and investigations conducted on healthcare providers are to confirm compliance with the CSA. These audits occur for a number of reasons. The DEA may have received a tip by a patient or pharmacy concerning a particular healthcare provider's practices with regards to prescriptions. They may have detected a significant change in a healthcare provider's pattern for writing prescriptions when compared to similar providers. It is also possible the DEA wants to conduct a random audit and investigation to ensure CSA compliance.
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Warrants and Notices of Inspection
The DEA has no legal obligation to provide a search warrant when it comes to a healthcare provider's location in order to conduct an audit. A search warrant will be required if the DEA is part of a criminal investigation conducted by other government agencies. The DEA audit starts with providing a Notice of Inspection of Controlled Premises. This notice is known as DEA Form 82. This form must be given to the subject prior to starting the audit process.
Informed Consent
Once the DEA presents Form 82, it is up to the subject of the audit to give its informed consent prior to the audit taking place. This informed consent is done with a written statement. The subject of the audit must write that they've been informed of their constitutional rights concerning the audit. They must also acknowledge if something of a criminal nature is discovered as a result of the audit, it can be used against them for criminal prosecution. They must also include a statement of their voluntary consent.
Refusing Informed Consent
There are many reasons the subject of a DEA audit may refuse to provide their informed consent. They realize their refusal will usually cause the DEA to obtain an administrative search warrant. It is recommended the subject of a DEA audit and investigation immediately obtain legal counsel when presented with DEA Form 82. A healthcare provider may want to reschedule because of seeing a high level of clients combined with lower then necessary staff levels. The individuals responsible for dealing with audits and investigations may not be immediately available. The provider may want to review their operation and make certain they're as organized as necessary to show compliance with the CSA.
Administrative Search Warrants
Should the DEA be refused informed consent, they will try to obtain an administrative search warrant form a U.S. Federal District Court. This is not like obtaining a regular search warrant. In this case, the DEA does not have to provide evidence of probable cause. It is only required to provide reasons for the nature and extent of their inspection. The DEA is also required to provide the scope of their inspection as well as any type of items they intend to seize. Courts commonly grant such DEA administrative warrants. Once the subject of a DEA audit is presented with an administrative search warrant, they must comply. If this does not happen, those involved could be subject to arrest and criminal prosecution.
Extent of Audit And Investigation
When the subject of an audit and investigation by the DEA is given an administrative warrant, it's important to know it doesn't give the DEA authority to audit or investigate everything. There are limits to what the DEA is able to inspect. A recent court decision did include patient records as part of an investigation and audit process. The DEA can interview a healthcare provider as well as staff. Any information obtained during the audit and investigation can be used in a criminal or administrative proceedings if necessary.
Consequences
If the DEA believes there have been laws broken in regards to the CSA, they can make a referral to the U.S. Attorneys Office. This could lead to a fine or criminal prosecution. If found guilty, it's possible to the guilty party could receive a $100,000 fine as well as a year in prison. Those who are found to be simply negligent could be fined up to $10,000 for each occurrence.