Understanding the DEA’s Diversion Control Program
In the context of prescription drug fraud and federal drug crimes, “diversion” refers to the practice of getting controlled substances and the chemicals used to manufacture illegal drugs into the hands of people who may abuse them. This includes dispensing narcotic medications to drug-dependent individuals, prescribing stimulants and depressants without medical necessity, and supplying illegal laboratories with the chemicals needed to manufacture and synthesize illicit drugs. Diversion is a serious criminal offense that can lead to incarceration, substantial fines, and other penalties. Individuals, facilities, medical practices, and other organizations facing diversion investigations must aggressively defend themselves in order to avoid facing criminal charges.
At the federal level, drug diversion investigations are conducted by the Drug Enforcement Administration’s (DEA) Diversion Control Division. As summarized on the DEA’s website:
“The mission of DEA’s 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.”
Answers to FAQs: DEA Diversion Control Division Investigations
Q: What types of practices can be investigated and prosecuted as drug or chemical diversion?
The DEA’s Diversion Control Program targets individuals and organizations that provide manufactured or synthesized drugs to people who do not need them for medical treatment or pain management. In doing so, it oversees all stages of the drug manufacturing and distribution process – from the importing of drug ingredients to the filling prescriptions at local pharmacies. The list of practices that can be investigated and prosecuted as drug or chemical diversion is long, and includes activities such as:
- Falsifying patient records for the purpose of supplying unnecessary medications
- Falsifying prescriptions and medication orders in order to divert controlled substances
- Selling prescription medications to drug dealers
- Selling prescription medications to drug-dependent individuals
- Stealing from pharmacy or distributor inventory
Q: What types of individuals and organizations are targeted under the DEA’s Diversion Control Program?
Under the Diversion Control Program, the DEA targets both registered and unregistered individuals and organizations. As part of the program, health care providers who prescribe, dispense, and administer controlled substance medications must register with the DEA. The DEA closely monitors registrants on an ongoing basis, and it also investigates other individuals and organizations suspected of involvement in drug and chemical diversion operations. Examples of individuals and organizations targeted under the DEA’s Diversion Control Program include:
- Physicians and medical practices
- Pharmacists and pharmacies
- Medical practice, pharmacy, and distributor employees
- Illicit drug manufacturers and dealers
Q: What federal statutes do the DEA and Department of Justice (DOJ) use to investigate and prosecute drug diversion?
The primary statute governing the diversion of prescription medications is the Controlled Substances Act of 1970 (CSA). The CSA established the well-known Schedules of controlled substances, and diversion of any drugs listed on Schedule I through Schedule V can lead to federal charges. The CSA also established the DEA’s registration protocol. It allows for vigorous prosecution of offenses involving the importation, manufacture, use, and distribution of “scheduled” drugs.
With respect to the diversion of chemicals used to manufacture and synthesize illicit drugs, the primary statutes used to investigate and prosecute individuals suspected of illegal activity include:
- Chemical Diversion and Trafficking Act of 1988
- Combat Methamphetamine Epidemic Act of 2005
- Comprehensive Methamphetamine Control Act of 1996
- Domestic Chemical Diversion Control Act of 1993
- Methamphetamine Anti-Proliferation Act of 2000
Q: Which drugs are most-commonly targeted in DEA Diversion Control Division investigations?
Under the Diversion Control Program, the DEA targets individuals, health care practices, drug companies, and criminal organizations involved in the manufacture, sale, and distribution of all types of controlled substances under the CSA. This includes (but is not limited to):
A complete list of Schedule I through Schedule V drugs is available from the DEA’s Diversion Control Division.
Q: Can I be investigated and prosecuted for unintentional involvement in drug or chemical diversion?
Yes. Section 842(a) of the CSA lists 16 “unlawful acts” that can lead to federal prosecution. These “unlawful acts” include unintentional violations such as:
- “to . . . negligently fail to make, keep, or furnish any record, report, notification, declaration, order or order form, statement, invoice, or information required under [the CSA];”
- “[to] negligently to fail to keep a record or make a report under section 830 of this title [pertaining to DEA registration] or negligently to fail to self-certify as required under section 830 of this title;” or
- “to . . . recklessly sell at retail a scheduled listed chemical product in violation of [the CSA].”
Furthermore, under the penalty provisions of the CSA, health care providers and other individuals and organizations can face fines of up to $25,000 per violation even if they did not knowingly engage in other forms of drug or chemical diversion. For knowing violations, the penalties under the CSA include federal imprisonment and defendants can face charges under other federal criminal statutes as well.
Q: What should I do if I am being investigated by the DEA’s Diversion Control Division?
If you or anyone in your business or practice has been contacted by investigators, special agents, or other personnel from the DEA’s Diversion Control Division, you need to seek experienced legal representation. Facing federal drug diversion charges is an extremely serious matter. And in addition to potential fines and jail time, drug diversion charges could also lead to loss of your DEA registration, loss of your state license, and charges under various other federal criminal and health care fraud statutes.
At Oberheiden & McMurrey, LLP, we focus our practice on representing physicians, pharmacists, drug distributors, and other individuals and organizations in civil and criminal matters. With decades of experience as defense attorneys and former federal prosecutors who worked closely with the DEA and other agencies, we have the experience and insights needed to fend off unjustified allegations of drug and chemical diversion.
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To speak with our experienced defense attorneys and former federal prosecutors about your DEA investigation, please call (214) 692-2171 or contact us online. We will schedule your free initial consultation as soon as possible.
This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results cannot guarantee a similar future outcome in your case. Oberheiden, P.C. is a Texas LLP with headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.