The Drug Diversion Investigation Process: An Overview

Drug Diversion Investigations Can Lead to Criminal Charges Against Pharmacists, Physicians, and Others. Learn What You Need to Know if You Are Under Investigation By the DEA

Combating drug diversion is a top priority for the U.S. Drug Enforcement Administration (DEA). The DEA’s Diversion Control Division focuses its efforts entirely on uncovering and investigating cases of drug diversion, and its Diversion Investigators work closely with prosecutors at the U.S. Department of Justice (DOJ) to pursue charges under the Controlled Substances Act (CSA), Chemical Diversion and Trafficking Act (CDTA), and other federal laws.

If you, your pharmacy, or your medical practice is the target of a DEA drug diversion investigation, it is imperative that you engage experienced federal defense counsel immediately. These investigations can move quickly, and any delays in executing a targeted and strategic defense could reduce your chances of avoiding federal charges. When you contact us, our federal defense lawyers and former DEA agents will get to work on your case immediately, and we will work diligently to protect you and your practice by all means available.

7 Steps in the DEA Drug Diversion Investigation Process

Most DEA drug diversion investigations follow a similar progression. Here is what you can generally expect once the DEA’s Diversion Control Division initiates an investigation:

1. Issuance of a Notice of Inspection (DEA Form 82)

A DEA drug diversion investigation will typically begin with the issuance of a Notice of Inspection (DEA Form 82). A DEA Diversion Investigator may show up and present this to you at your practice’s front door.

Despite its name, a Notice of Inspection does not actually provide notice of an inspection. Rather, it provides notice of the Diversion Control Division’s intent to inspect your practice’s premises. You have the right to refuse, and whether you should refuse is a matter that you should discuss with an experienced federal defense lawyer immediately.

If you give consent for DEA Diversion Investigators to inspect your practice’s premises, you will be deemed to have acknowledged the following based on the contents of the Notice of Inspection: (i) you have been informed of your Constitutional right to refuse the inspection; (ii) you understand that any incriminating evidence found during the inspection can be used against you; and, (iii) you have voluntarily agreed to allow Diversion Investigators to review your practice’s records and conduct a physical inspection of its premises. As a result, while it can be in your interests to consent to an inspection under appropriate circumstances, you should not automatically assume that consenting to the inspection and cooperating with the DEA’s Diversion Investigators will be in your best interests. In fact, it can be very dangerous in some cases.

2. Issuance of a Search Warrant

If you refuse to consent to an inspection, then the Diversion Control Division’s next step will typically be to obtain a search warrant. At this stage, Diversion Investigators can request an administrative search warrant from a federal district court judge. The significance of this being an administrative search warrant is that it does not require proof of probable cause.

If Diversion Investigators have reason to believe that you (or someone within your practice) has engaged in criminal drug diversion, they can also seek a criminal search warrant based on probable cause. But, whether the DEA obtains an administrative search warrant or a criminal search warrant, the risks can potentially be the same. As a result, both types of search warrants require the same approach from a defense perspective, and you will need to work with your federal defense counsel to ensure that you effectively assert your legal and constitutional rights without unlawfully impeding the DEA’s investigation.

3. Examination of Your Practice’s Records and Facilities

Whether pursuant to a Notice of Inspection or an administrative or criminal search warrant, eventually Diversion Investigators will examine your practice’s records and facilities. When they do so, they will be looking for any and all possible forms of evidence of prescription drug diversion. This may include:

Drug diversion compliance policies and procedures
Order forms and prescription medication logs
Prescription pads and issued prescriptions
Prescription drug storage areas
Prescription drug storage area access logs
Prescription drug inventories
Prescription drug transfer and disposal records and practices
Medicare, Medicaid, Tricare, DOL and private insurance billing records
Video surveillance footage

These are just some of the major examples. Diversion Investigators will not leave any stone unturned, and they will be looking for a number of red flags. You will want your federal defense counsel to play an active role in this process—overseeing Diversion Investigators’ activities and proactively addressing any apparent “red flags” that can be explained without criminal implications.

4. Interviews with Your Practice’s Staff

When conducting a drug diversion investigation, the DEA’s Diversion Investigators will also seek to interview your practice’s staff. This may include both individuals who are and aren’t suspected of participating in any alleged diversion of opioids or other medications. Staff members should be prepped in advance of being interviewed, and defense counsel should be present for all staff interviews conducted by DEA personnel.

5. Issuance of a Noncompliance Report

After reviewing your practice’s records, examining your practice’s facilities, and interviewing your personnel, Diversion Investigators will issue a report of their findings. In most cases, this will be in the form of a noncompliance report outlining various alleged deficiencies. If Diversion Investigators find evidence of drug diversion (or other compliance violations), they can also initiate administrative action (i.e. suspension or revocation of your practice’s DEA registration), and they can refer providers to the DOJ for further action as well.

However, these are not the only possible outcomes. If you engage federal defense counsel for your drug diversion investigation, your counsel may be able to steer the investigation toward a positive result. It may be possible to address any shortcomings during the investigative process, or it may be possible to prove that your practice is (and has been) fully compliant. Achieving this type of result requires a proactive approach; and, with an investigation pending, your counsel will need to be able to affirmatively demonstrate compliance using your practice’s policies, procedures, and records.

6. Search Warrants, Subpoenas, and Target Letters

Let’s say the outcome of your DEA drug diversion investigation isn’t so positive. Let’s say Diversion Investigators find evidence that a member of your staff has diverted opioids for personal use or for sale. What happens now?

As we mentioned above, Diversion Investigators will refer cases to the DOJ when warranted. If this happens, you can expect additional search warrants, subpoenas, and target letters to be forthcoming. DOJ agents have a variety of investigative tools at their disposal; and, with the evidence secured by the DEA’s Diversion Investigators in hand, they will be prepared to work quickly to build a case for prosecution.

At this stage, the DOJ may also choose to expand the scope of the investigation. Is there evidence to suggest that other individuals may be involved? Is there evidence to suggest that your practice has improperly billed Medicare or Medicaid for diverted medications? At this point, no allegations are off of the table, and it may be necessary to execute a comprehensive defense strategy in order to avoid federal prosecution.

7. Decision Regarding Prosecution

Finally, after the entire investigative process is complete, the DOJ will make a decision regarding prosecution. If news of your practice’s drug diversion investigation never makes its way to the DOJ, then this will be a non-issue. However, if the DEA’s Diversion Control Division refers your case to the DOJ, then there is a very real risk that you could face prosecution under the CSA, CDTA, or other statutes.

FAQs: Facing a DEA Drug Diversion Investigation

Can (and Should) I Hire a Defense Lawyer for a DEA Drug Diversion Investigation?

Yes. DEA registrants have the right to engage legal counsel for drug diversion investigations, and it is strongly in your interests to rely on the advice and representation of a team of federal defense lawyers and former DEA agents throughout the process.

Should I Consent to a Search if I Have Received a Notice of Inspection (DEA Form 82)?

It depends. While consenting to a search will make sense in some cases, in others it absolutely will not. Our federal defense lawyers can explain why you should or shouldn’t consent to a search based on the particular facts of your case.

What Should I Do if I Am Concerned about What Diversion Investigators Will Find?

If you are concerned about what the DEA’s Diversion Investigators will find, this is all the more reason to engage an experienced defense team right away. Even if you are aware of statutory violations, it may still be possible to avoid prosecution for drug diversion with a proactive and strategic defense.

Speak with a Drug Diversion Investigation Defense Lawyer at Oberheiden P.C.

If you would like to speak with a defense lawyer about a DEA drug diversion investigation, we strongly encourage you to contact us right away. Call 888-680-1745 or send us a message online for a complimentary consultation.