Physicians Beware — DEA Voluntary Surrender Form 104 in White Collar Crime Investigations
Matthew P. Massey is a Partner in the White Collar, Government Investigations, and Special Matters Group. He is a former Assistant U.S. Attorney with the U.S. Attorney’s Office for the District of Columbia. He represents businesses and individuals in high stakes matters including federal criminal defense and white-collar investigations.
Physicians and healthcare providers (HCPs) beware: signing a DEA Form 104 can be disastrous to both patient care and a physician’s career. Agents with the DEA’s Diversion Control often present these forms to HCPs when executing search warrants, serving subpoenas, or conducting surprise interviews. The agent slaps the Form 104 in front of an intimidated, shocked HCP and advises that the HCP must sign the agreement to “cooperate” or “show a sign a good faith.”
A DEA Form 104 is a Voluntary Surrender of Controlled Substances Privileges. There should be one answer — no. Talk to an experienced white collar criminal defense attorney prior to surrendering your license as the consequences can be tremendous.
Current regulations provide that the DEA registration of a HCP terminates if and when such person dies, ceases legal existence, or discontinues business or professional practice. at 21 C.F.R. §§ 1301.52(a), 1309.62(a). However, under 21 C.F.R. §§ 1301.52(a), 1301.62(a), when a HCP signs this Form 104, the HCP immediately loses prescribing privileges for Schedule II through V medications. That means the DEA need not institute any administrative proceedings or otherwise give the HCP the opportunity to present evidence, fight to maintain the license, or contest the proceedings. The loss is automatic and officially becomes “voluntary.”
The DEA re-registration of that license can be very difficult to re-obtain. The HCP is required to re-apply for the license, and the DEA has little incentive to expedite the re-application process or comply with the HCP’s request. Times vary, but the process can take upwards of two years. Moreover, Medicaid and Medicare may suspend reimbursements to a HCP who cannot provide the full spectrum of patient care, and the HCP often loses privileges to practice at hospitals and medical facilities. It is critically important to immediately consult an experienced white collar attorney when asked to sign a Form 104.
