The story has been repeated thousands of times in recent history: An agent garbed in a DEA jacket arrives at your practice and begins asking you questions regarding your prescribing habits. Wishfully thinking that this is just a routine inspection, the practitioner dutifully answers all of the agent’s questions. At the end of the interview, the DEA agent informs the practitioner that he or she is “in big trouble” and that “practicing is the least of your concerns,” followed by “it would make it easier for you if you just voluntarily surrender your DEA registration.” The agent tells the practitioner that if you do not surrender your DEA registration, they will revoke it anyway as he or she shoves an innocuous looking voluntary surrender form and pen across the table.
Often confused, scared and fearing the consequences of the recent raid, inspection or interview, practitioners routinely sign their careers away with the stroke of a pen. Regardless of the magnitude of the investigation, this is the worst decision a practitioner could make. Taking legal advice from a DEA agent is like taking financial advice from a con man. The only hope is that, in those fleeting moments of clarity, you step away from the agent and call a health care law attorney skilled in DEA matters.
In order to suspend or revoke your DEA registration, the Attorney General must prove one of the following factors:
Prior to revocation, the Attorney General must provide you with an “Order to Show Cause” why your registration should not be denied, revoked or suspended. You must respond within 30 days of the order and administrative proceedings will commence pursuant to Section 1301.41. In certain “emergency” situations, the Attorney General may suspend any registration simultaneously with the institution of proceedings where he or she finds that there is an “imminent danger to the public health or safety”2. Therefore, if you refuse to voluntarily surrender your DEA registration, the DEA will be required to submit an order to show cause and provide you with an opportunity for a hearing. Conversely, if you surrender your DEA registration, you are waiving your right to a hearing and you would be required to re-apply for your registration after the resolution of the criminal, civil or administrative proceedings against you. Resolution of these matters could take a significant amount of time – possibly years.
In May 2014, the Office of the Inspector General (OIG) issued a report citing extreme delays in the adjudication process for suspensions, revocations and denials of DEA registrations3. The OIG concluded that “delays in the adjudication of registrant actions create risks to the public health and safety” as well as to the licensee4. The OIG found that adjudication could take more than 1 year between notification of hearing and agency action, which it deemed “very lengthy.” The OIG also noted that the Agency has “consistently failed to meet its own timeliness standards in adjudicating immediate suspension orders.” As a result of the OIG’s review, it is clear why DEA agents routinely try to convince registrants that they should surrender their DEA registration voluntarily and waive their right to a hearing. Given the extreme backlog of cases pending adjudication, a practitioner may continue prescribing until final adjudication by the agency is completed. As noted above, this could take over a year.
If the Agency proceeds with an immediate suspension order, the significant delays in DEA adjudication could impact the practitioner negatively. In 2012, the DEA took 459 days to adjudicate an immediate suspension order5. However, when faced with the choice of voluntary surrender without a hearing and immediate suspension, the practitioner should almost always exercise their right to due process and request a hearing. First, there is a chance that the DEA will not file an immediate suspension order. Second, the practitioner may have some likelihood of success at an administrative hearing.
Finally, practitioners must remember if a practitioner voluntarily surrenders his or her license and seeks reinstatement, these delays will further impact your ability to return to practice after the completion of your pending administrative, criminal or civil matter.
While the laws governing the prescription of controlled substances are different in every state, most states require a controlled substance license in order to prescribe Schedule II through IV substances. When a practitioner voluntarily surrenders his or her DEA registration, there is a significant chance that the practitioner’s state may take independent action to revoke, limit or suspend the practitioner’s state license. Often, there is a domino effect when administrative action (including voluntary surrender) taken by the DEA or a state in which the practitioner holds a license ripples into other states and can cause significant legal expenses, adverse administrative action and state sanctions. Refusing to voluntarily surrender your registration will delay this domino effect and possibly prevent it, if you and your attorney are successful in resolving the pending criminal, administrative or civil action.
Additionally, most hospital credentialing bodies and insurers require a DEA license as a condition of employment or participation. Voluntary surrender of your DEA registration may trigger a mandatory reporting requirement to your credentialing body and participating insurers, which could lead to swift and harsh credentialing action and loss of privileges.
In conclusion, practitioners rarely benefit from the voluntary surrender of their DEA registration. Any agent’s promise that surrender will provide a benefit should fall on deaf ears unless it is specifically negotiated by counsel in exchange for some other relief. When the DEA agent slides that form across the table, politely slide it back and contact an attorney who specializes in DEA matters.
1. 21 USC §823
2. 21 USC §823(d)
3. Office of the Inspector General, Department of Justice. “Drug Enforcement Administration’s Adjudications of Registrant Actions.” Justice.gov., 1 May 2014. Web.
4. Id. at 18.
5. Id. at 43.
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