The scenario is not all that uncommon: Drug Enforcement Administration (DEA) agents or investigators show up at your office as part of a routine audit, administrative inspection or, worse, a criminal investigation. Not having expected the unanticipated visitor, you or your medical office staff feel unprepared, anxious, and perhaps a bit fearful. Eager to resolve any issues so your normal business can resume, when the DEA representative presents you with Form 104 “Voluntary Surrender,” you grudgingly think your best option is to sign it. After all, the DEA agents told you it was the easiest and fastest way to make them go away. They insisted their inspection has revealed evidence of various regulatory violations that inevitably would result in a protracted administrative process, at the end of which you would lose your registration anyway. Signing the form seems to be your best bet.
But, in some cases it may be your worst bet.
Much has been written about the various pitfalls of voluntarily surrendering your DEA license. The surrender results in the immediate loss of prescribing privileges, may have a domino effect on other state licenses or registrations, leads to significant time and administrative delays in the re-application process, and may have other collateral effects, including the loss of medical staff privileges or board disciplinary actions. Lesser known among the consequences of voluntary surrender, however, is the potential for your Medicare billing privileges to be revoked.
Pursuant to regulation, the Centers for Medicare and Medicaid Services (CMS) has the authority to revoke an enrolled provider’s Medicare billing privileges due to the loss of the provider’s prescribing authority either because of revocation or suspension of their DEA registration or a state license authorizing the provider to prescribe drugs. See 42 C.F.R. § 424.535(a)(13). When a provider’s billing privileges are revoked, all Medicare provider agreements are terminated immediately and the provider is barred from participation in the Medicare program for anywhere from one to three years. The provider also becomes subject to various claims submission and reporting deadlines which, if missed, can create further overpayment and other liabilities. Needless to say, the consequences of revocation can be dire.
The good news? CMS has taken the position that a DEA registration voluntary surrender alone does not necessarily trigger its discretionary authority to revoke the provider’s Medicare privileges. See 79 Fed. Reg. 29897. The bad news? A DEA voluntary surrender often leads to collateral consequences, including in some states the automatic suspension or revocation of a state license or registration to prescribe drugs. If a state license is revoked or suspended, CMS now has independent grounds to revoke Medicare billing privileges. This could mean that what you thought was your best option to resolve a DEA issue has now led to potentially serious consequences for your practice.
Such a scenario highlights three key takeaways for providers with DEA registrations:
- Know your rights when visited by the DEA
- Understand how your state’s laws interplay with actions taken against a DEA registration
- Carefully and thoughtfully weigh the full range of risks and benefits of any request to voluntarily surrender your DEA registration