What Should You Do When You are Under Investigation By the DEA?
Trusted Defense Lawyers for DEA Investigations
From Anti-Kickback Statute violations to opioid diversion, the U.S. Drug Enforcement Administration (DEA) investigates pharmacies for a broad range of offenses. If your pharmacy is under investigation, you will need to act swiftly to mitigate your risk of facing civil or criminal charges.
When facing a DEA investigation, there is a lot you need to know. If the DEA is looking into your pharmacy, there could be numerous reasons why, and the potential outcomes will depend on both the scope of the investigation and how you respond to the DEA’s inquiry.
Due to the risks involved with facing a DEA investigation, if your pharmacy is being targeted for possible civil or criminal prosecution, it is imperative that you engage experienced federal defense counsel promptly.
At Oberheiden P.C., our DEA defense lawyers can intervene in the investigation, interact with the DEA’s agents on your pharmacy’s behalf, and steer the investigation toward a favorable outcome. We represent pharmacies across the country, and we have significant experience successfully resolving high-stakes DEA investigations.
10 Essential Steps When Facing a DEA Investigation
Is the DEA investigating your pharmacy? If so, here are 10 steps that need to be taken as soon as possible:
1. Intervene in the DEA’s Investigation
There are three primary ways that you can respond to a DEA investigation: (i) you can ignore it, (ii) you can comply with the DEA’s demands, or (iii) you can intervene. By hiring a DEA defense lawyer to intervene, not only can you slow down the investigative process, but you can also ensure that the investigating agents do not overreach, and you can avoid unnecessarily disclosing information that could potentially lead to trouble for your pharmacy. At Oberheiden P.C., we promptly intervene in our clients’ investigations, and we use our prior DEA experience to quickly assess our clients’ risks and options.
2. Determine the Scope of the Investigation
DEA investigations can target an extremely broad range of regulatory and statutory offenses. In order to ensure that your pharmacy puts forward the right defense, it is imperative to determine the scope of the inquiry. By intervening in your pharmacy’s DEA investigation, our defense lawyers can determine whether your pharmacy is being targeted for:
- Anti-Kickback Statute violations
- DEA registration violations
- Drug Supply Chain Security Act (DSCSA) violations
- Electronic prescription fraud
- Inventory, storage, disposal, or recordkeeping violations
- Medicare, Medicaid, or Tricare billing fraud
- Money laundering, mail fraud, or wire fraud
- Private insurance billing fraud
- Opioid diversion
- Specialty or compound pharmacy fraud
3. Identify What Triggered the Investigation
In addition to determining the scope of the investigation, it is also important to determine the investigation’s trigger. Is the DEA conducting a routine inspection? Or, did a patient or employee contact the agency? These are very different situations that require very different defense strategies.
4. Conduct an Internal Risk Assessment
When the DEA is investigating your pharmacy, you need to know what (if anything) the agency is going to find. This is information you need now, and you need to have a clear and comprehensive understanding of your pharmacy’s exposure (if any) in the investigation. Gathering this information requires a prompt and efficient internal DEA risk assessment, and this audit should be conducted by your pharmacy’s DEA defense counsel so that the attorney-client privilege will apply.
5. Assess the Audit Results
After conducting an internal DEA risk assessment, your pharmacy (and its defense counsel) must promptly assess the results. Is the DEA going to find deficiencies in your pharmacy’s compliance efforts? Or, does your pharmacy have clear and comprehensive documentation of compliance? Here, too, these are two very different scenarios that will mandate different approaches to your pharmacy’s DEA defense.
6. Formulate a DEA Defense Strategy
The next step after assessing the results of your pharmacy’s internal risk assessment is to formulate your pharmacy’s DEA defense strategy. Your pharmacy’s defense strategy must address all allegations at issue in the investigation, but it must also be tailored so as to not defend against (and potentially disclose information regarding) any charges that are not on the table.
7. Understand What To Do (and Not To Do) During the Investigation
As the target of a DEA investigation, you need to be very careful about everything you say and do. Your DEA defense attorney can advise you regarding both what to do and what not to do, and it will be extremely important for you to follow your attorney’s advice.
8. Defend Against the DEA’s Allegations
Once you have a clear understanding of the scope of the DEA’s investigation, what (if anything) has the potential to lead to charges, and what defenses your pharmacy can assert in response to the DEA’s allegations, your pharmacy will then be prepared to execute a sound defense. At this stage, you will need to rely on your pharmacy’s defense counsel to communicate with the investigating agents, deal with federal prosecutors, and try to protect your pharmacy (and you personally) against facing federal charges.
9. Work Toward a Favorable Pre-Charge Result
Once your pharmacy falls within the DEA’s crosshairs, the best possible outcome is to resolve the investigation without charges being filed. At Oberheiden P.C., this is an outcome we pursue in every DEA investigation we handle. Whether this means avoiding liability entirely or negotiating a pre-charge settlement will depend on the specific circumstances presented. We have been successful in convincing federal prosecutors that no civil or criminal penalties are warranted in many cases; however, every case presents its own challenges based on the unique circumstances involved.
10. Prepare for a Federal Grand Jury if Necessary
If it is not possible to avoid charges as the result of your pharmacy’s DEA investigation, the next stage may be to prepare for a federal grand jury. Pharmacy investigations can lead to either civil or criminal charges; and, in cases involving opioid diversion and other federal law enforcement priorities, prosecutors will not hesitate to seek an indictment.
FAQs: DEA Investigation Defense
What Typically Triggers a DEA Investigation?
DEA investigations can result from several different triggers. In some cases, DEA investigations are a matter of routine, as the DEA conducts periodic inspections of DEA registrants. However, even a “routine” DEA investigation cannot be taken lightly, as any evidence uncovered during the investigation can potentially be used to support civil or criminal charges.
Other potential triggers include complaints from patients or employees, referrals from other health care providers, and referrals from other federal agencies. In many cases, the DEA works with other federal agencies to pursue broad-scale investigations and takedowns.
What are Examples of DEA Defense Strategies?
Examples of DEA defense strategies include: (i) demonstrating compliance, (ii) challenging the sufficiency of the DEA’s evidence, (iii) asserting safe harbor protection (in relevant cases), (iv) asserting constitutional protections, and (v) negotiating when necessary. The defense strategies available for any individual DEA investigation will depend heavily on the specific facts and circumstances involved. In order to determine what defenses your pharmacy can (and must) assert, it will be necessary to conduct an internal risk assessment and examine the DEA’s investigative activities to date.
How Can I Determine if My Pharmacy is At Risk Due To a DEA Investigation?
Conducting a prompt and efficient internal risk assessment is the best way to assess a pharmacy’s risk arising out of a DEA investigation. By proactively identifying any potential issues, pharmacies can not only determine whether they are at risk for civil or criminal penalties, but also formulate targeted defense strategies that focus on the facts at hand.
Can a DEA Investigation Lead to Charges Against the Pharmacy Owner or Pharmacists?
Yes, not only can DEA investigation lead to charges against pharmacies, but they can also lead to charges against the pharmacy owners and pharmacists. As a result, during a DEA investigation, it is imperative to focus not only on risks at the pharmacy level, but at the individual level as well. If an individual owner or pharmacist has made a mistake, even inadvertently, then it will be necessary to build a defense strategy focused on protecting that individual against federal prosecution.
If My Pharmacy is Under Investigation, When Should I Hire a DEA Defense Lawyer?
If your pharmacy is under investigation, you should hire a DEA defense lawyer immediately. Prompt intervention is crucial, and you also need to quickly conduct an attorney-client privileged internal risk assessment. At Oberheiden P.C., our DEA defense lawyers are available to consult with pharmacy owners and pharmacists 24/7, and we can begin working on your pharmacy’s defense right away.
Speak with a Senior DEA Defense Lawyer at Oberheiden P.C.
Is your pharmacy under investigation by the DEA? If so, we strongly encourage you to speak with one of our senior DEA defense lawyers right away. Our career federal defense lawyers, former federal prosecutors, and former DEA agents can intervene in the investigation and determine what defenses you have available. To speak with a lawyer at Oberheiden P.C. in confidence, call 888-680-1745 or contact us online now.