Understanding the Two Types of DEA Search Warrants
For healthcare providers that administer, dispense, and prescribe, controlled-substance medications, the legal risks of non-compliance with the Controlled Substances Act and other federal healthcare laws include the risk of investigation by the Drug Enforcement Administration (DEA). The DEA, which frequently works in collaboration with the Department of Justice (DOJ), Department of Health and Human Services (DHHS), and various other federal agencies, is in charge of investigating providers suspected of engaging in prescription-related healthcare fraud–– including fraud contributing to the nation’s opioid abuse epidemic.
The DEA has a number of tools at its disposal when investigating healthcare providers. These tools include two types of search warrants: a criminal search warrant, and an administrative inspection warrant (or administrative search warrant).
While receiving either type of warrant is a matter to be taken very seriously, it is critical to know which type of warrant the DEA is utilizing to investigate your business or practice. Each has different potential ramifications (although any type of federal healthcare fraud investigation can ultimately lead to criminal charges), and providers’ obligations when served with each type of warrant vary.
1. Criminal Search Warrants in DEA Investigations
The DEA must obtain a search warrant from a federal judge before entering your premises. The Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, protects healthcare providers and their personnel in criminal investigations. This means that federal judges can only issue search warrants with “probable cause.” In order to demonstrate probable cause, DEA agents must usually submit an affidavit with facts indicating some form of healthcare fraud involving controlled substances.
Federal criminal search warrants are also subject to various other requirements and limitations. For example, under Rule 41 of the Federal Rules of Criminal Procedure, a search warrant must direct the DEA to:
- execute the warrant during the daytime, unless there is “good cause” for nighttime execution;
- execute the warrant within a specified period of time, not to exceed 14 days; and
- return the warrant to a designated judge.
In regard to electronically-stored information (including billing records and patient files), Rule 41 states:
“A warrant . . . may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41 refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.”
Importantly, any evidence obtained as a result of the DEA’s search may be deemed inadmissible in court if a criminal search warrant is issued without probable cause or if the DEA executes the warrant in a manner inconsistent with the directions provided by the judge. This includes records and files seized during the search as well as electronic records accessed off-site and evidence subsequently obtained in reliance on the results of the unlawful search. Subsequently, when defending against criminal charges relating to a DEA search and seizure, it is imperative to carefully analyze the warrant and all related proceedings in order to determine whether their may be grounds to argue for inadmissibility.
2. DEA Administrative Inspection Warrants
Along with conducting criminal investigations, the DEA also has the authority to conduct administrative inspections (or “audits”) under the Controlled Substances Act (CSA). When performing an administrative inspection, DEA agents have two ways to obtain information from targeted healthcare providers.
The first way is by presenting the target provider with a Form 82 (Notice of Inspection of Controlled Premises). When the DEA presents a provider with a Form 82, it must obtain the provider’s informed consent before conducting an inspection. This requires a written acknowledgement that the provider is aware that they are not constitutionally required to submit to the inspection, and that any evidence obtained during the inspection may be used in subsequent administrative or criminal proceedings.
The DEA must obtain an administrative inspection warrant prior to continuing with its investigation if a provider refuses informed consent after being presented with a Form 82. In most cases, this is the rule. However, there are some key exceptions that apply. For example, the DEA is not required to obtain an administrative inspection warrant if:
- the DEA has issued administrative subpoena for inspection of the provider’s books and records;
- the target of the investigation is an applicant for initial DEA registration; or
- there is an imminent threat to public health or safety and there is not sufficient opportunity to obtain a warrant.
Dissimilar to criminal search warrants, administrative inspection warrants can be issued without proof of probable cause. All the DEA needs to do is merely describe the nature of the investigation and the items or information sought to be inspected. However, unlawfully refusing to comply with an administrative inspection warrant may still result in arrest. Any provider who has been served with an administrative inspection warrant should immediately seek the best federal healthcare defense legal counsel.
The DEA conducts random administrative inspections as well as inspections triggered by whistleblower allegations and anomalies in the providers’ federal healthcare benefit program billing data. Although these investigations are administrative in nature, (i) administrative inspections can lead to revocation, suspension, or denial of DEA registration; and (ii) it is not unusual for information seized during administrative inspections to trigger criminal investigations. Subsequently, your immediate course of action should be to speak with an experienced healthcare fraud defense attorney regardless of whether you have been served with a criminal search warrant, an administrative inspection warrant, or a Form 82.
Discuss Your DEA Investigation or Inspection with an Experienced Healthcare Fraud Defense Attorney
To learn more about protecting your rights during a DEA investigation or inspection, you can contact the law offices of Oberheiden, P.C. for a free and confidential consultation. To speak with a member of our healthcare fraud defense team, please call 888-680-1745 or get in touch online now.
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 PC with headquarters in Dallas. Dr. Oberheiden limits his practice to federal law.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.