Doctors, Drop Your Pens: The DEA and Voluntary Surrender
By Kaylee P. Davis-Maddy, Associate Attorney of Doerner, Saunders, Daniel & Anderson, LLP
Let’s assume for a second that a provider with a federal Drug Enforcement Administration (DEA) registration (who I’ll call the “registrant”) receives an unscheduled visit from an agent or investigator from the DEA. They present the registrant with a warrant and search his/her offices for hours. They tell him/her there could be criminal charges against them and that they are in big trouble.
At some point, the agent presents the registrant with the DEA Form 104, titled “Voluntary Surrender of Controlled Substances Privileges.” They tell the registrant that things will be so much easier if they just cooperated. Heck, they say, this unspecified problem will go away – if the registrant signs the form. That if the registrant signs it, he/she can easily get the DEA registration back later. But, they tell him/her, if the registrant doesn’t sign it and they move to take away the DEA registration through some kind of court proceeding, the registrant will never get it back.
What should the registrant do?
DON’T SIGN IT.
At least, not right away.
Here is what happens if and when the registrant signs it:
1. The registrant is all but admitting that whatever the DEA says they did wrong is true.
The most recent voluntary surrender form has two options. One: that says the registrant want to voluntarily terminate handling of controlled substances. Or two: that the registrant allegedly failed to comply with the law, but in good faith want to fix the incorrect and unlawful practices. Guess which one the DEA allows the registrant to choose?
Recently I had a case where a client was asked to voluntarily surrender. I advised the agent that if we were voluntarily surrendering, we were doing it voluntarily, meaning we would not be stating we may have violated the law and wanted to correct whatever unlawful mistakes were made. One can imagine how well that went over.
2. The registrant has no right to fight for his/her registration and no right to a hearing to make the DEA prove their case against him/her.
When the DEA says the registrant violated the federal regulations and law, they have to prove it. They must prove that the registrant violated the law in some enumerated way and no longer meet the requirements for maintaining his/her registration.
If the registrant signs the form, the case is closed and s/he has no right to a hearing to try and keep the registration.
3. It will cause other problems outside of just the DEA.
First, the voluntary surrender will be reported to the National Practitioner Data Bank.
Second, as soon as the registrant loses his/her DEA registration, s/he is no longer allowed to have a state dispensing registration. Signing the form may also trigger disciplinary actions through the registrant employer or licensing board, or…
4. If the registrant wants to get another registration, it will take at least 18 months, assuming the registrant can even get one.
Once a DEA registration number is lost, it is incredibly difficult to regain. As soon as the registrant reapplies, the DEA will fight every step of the way, all the while the registrant is unable to prescribe controlled substances, making his/her ability to practice (and keep or gain insurance participation) practically impossible.
What seemed like a good idea at the time to get this persuasive (and possibly intimidating) DEA agent out of the registrant’s office has now led to potentially disastrous results.
But what about when the DEA agent told the registrant that it would be easier if s/he signed it?
Well, the agent has no reason to tell the registrant the whole story. They want the form signed, as it makes their life easier (since they don’t have to prove the registrant actually did something wrong). They know the registrant is probably scared or worried and will take advantage of that to get what they want.
But what about when the DEA agent said that if they took the registration away without the registrant voluntarily agreeing s/he’d never get it back?
What they’re saying here is that if the registrant’s registration is revoked (which is the process by which they take it away), the registrant won’t ever get it back. That is wrong.
By law, revocations are not permanent and the registrant would be entitled to apply for a new registration, unless the DEA proves their case and the Hearing Examiner (like the judge for DEA issues) says the registrant’s conduct was so terrible an egregious that you should be permanently revoked (which is a high burden).
When they say that (that the registrant will never get his/her registration back if they take it away), what they mean is that they will fight like crazy to keep the registrant from getting a new one.
Should the registrant never voluntarily surrender his/her DEA registration?
At the beginning of this article, I said registrants should not sign the voluntary surrender form, at least not right away. There could be circumstances where it is beneficial to voluntarily surrender. But that is not something the registrant would know until speaking with an attorney. Registrants who are visited by the DEA always have the right to tell the DEA agent they need to consult with an attorney before signing or making any statements.
Know your rights and contact an attorney to advise you the minute they show up to your office.
If you would like to speak with a knowledgeable Oklahoma attorney about DEA registration, revocation proceedings or any other healthcare matter, contact Kaylee Davis-Maddy at 405-319-3513 or firstname.lastname@example.org for more information.
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