The big audit. At last.
In my last post I told you I expected DEA agents to return, "Administrative Warrant" in hand, to conduct the obligatory audit of my buprenorphine practice. The entourage did arrive on October 14, conducted the audit, and I'm still a free man. Nobody got hurt.
Let me recap: When I applied for the special DEA number that allows me to treat opiate addiction with buprenorphine it was clear that I might have to submit to audit of my prescribing records. However, only about a year ago I discovered DEA had embarked on a project of auditing all such physicians. I only objected to a few aspects of the plan. DEA law enforcement agents, the sort that might carry badges and guns, would conduct the audits. This I could accept, but what really galled me was DEA's refusal to schedule the audits. I guess they thought they might catch me red-handed doing something illegal. I expected this to disrupt my practice unnecessarily, and I began to protest. Professional associations such as the American Psychiatric Association, the American Association of Addiction Psychiatry, and the American Society of Addiction Medicine, to my disappointment, focused their efforts on assisting physicians in complying rather than assisting us in assuring that our rights and those of our patients would not be violated. We all learned early on to expect agents to present physicians with Form 82 on arrival. This form permits agents to enter the office and conduct the audit. We were warned that if we refused to sign Form 82 agents would return with an "Administrative Warrant." (Yikes!)
Warrants, even the administrative kind, sound pretty bad, like something to be avoided at all costs, something that will brand you a criminal for the rest of your life. But it seemed possible there might exist some advantage in going this route, and that has turned out to be true. I asked DEA to provide me with a copy of such a warrant and detailed description of how they conduct such an audit. The description proved vacuous and useless, and DEA refused to send me a copy. I figured I would have to get it the hard way.
After agents Sanchez and Carter left my office on October 8 I wondered how long I would have to wait for them to return with the dreaded administrative warrant I had the audacity to demand from them, but I decided to use the time to prepare. I would not have wanted to do the audit on the 8th anyway. Although my office manager was there to help, it had been a busy morning, and I was running behind. The buprenorphine prescription logs I wanted to show the auditors still needed hours of work to remove patient names, so that night I copied all buprenorphine prescription records of patients I deemed active going back the requisite 90 days to a single spread sheet on Google docs. Then it was just a matter of keeping it up-to-date.
When I walked back into my waiting room October 14 after lunch and a haircut, a casually dressed man introduced himself, handed me my warrant (the moment I had been waiting for -- I wonder how long he had been waiting.), and told me to read it over and get settled while he summoned the rest of the troops. He staked out the waiting room for the rest of the audit. Agent Carter took charge. A big guy with a couple suitcases turned out to be their computer "expert" (his description). There was an African-American woman who didn't do much. And remember the attractive woman I mentioned from my own unannounced visit to the DEA field office? She's their secret weapon. I call her Ms. Waterboard. She can interrogate me any day. Anytime she wants to. I'll confess to anything. Making obvious assumptions about everyone's sexual orientation and marital status, if you're 10-20 years younger than me, and have not already found the woman of your dreams (like I have), and practice in the area covered by the Seattle field office, do whatever it takes to get interrogated by Ms. Waterboard. And she loves dogs, so arrange to have one in your office for the audit.
Just to speculate on DEA strategy: Have enough agents to keep the doc so busy that he won't really notice when they do something they probably shouldn't or that he might say something he might have preferred to avoid saying. I let down my guard with the interrogation. I can only blame Ms. Waterboard so far. I did confront the agents with the fact that there was no mention on the warrant of any interrogation. However, it seems fair to me that they should be able to ask me questions directly related to my buprenorphine records.
I do believe DEA exceeded the appropriate boundaries in interrogating me. Agent Carter asked me my observations about the relative numbers of heroin addicts versus pharmaceutical opiate addicts presenting for treatment. I had no idea. I was also asked how many active patients I was currently treating. When I asked for a definition of "active" none was forthcoming. When I made a wise crack about my experience testifying in court where a definition would be damanded, the African-American woman reminded me that she knew all about my background. So I hedged and estimated between 30 and 40 patients without a real definition. Ms. Waterboard asked me about my office hours. Rather than getting into a discussion of the fact that I don't really have set office hours, I evaded the question by reporting the days and times when my office manager is usually present. No one seemed to notice that I didn't really answer the question. (This often works in court, too, by the way.)
The auditors presented me with a single page printout of prescriptions from a local pharmacy, citing it as evidence that I stocked buprenorphine in my office, which I never have. When I explained that these were simply prescriptions picked up by patients before coming to the office to have their induction the auditors made a few phone calls and dropped the issue.
The real fun was with my log. The DEA computer "expert" seemed befuddled by the notion that my log resided on a server somewhere in cyberspace. The warrant simply did not contain any language to allow for seizure of such an abstract entity. I offered to print a copy, but I think he really wanted to snoop around in my hard drive. It appeared as though he had never seen a tablet PC before. He opened a case containing an impressive array of hard drives, and connected one to a USB port, but ultimately was unable to figure out how to download the elusive file. I offered to help. He accepted, and thus began the most time-consuming part of the audit. We are dealing with computers here after all. Unfortunately, I had not yet installed Adobe Acrobat Reader on my tablet since installing Windows 7. After 15 or 20 minutes I was able to download a copy of the file to the hard drive so he could make a copy, and I was also able to print a copy on paper.
Of course the whole notion of "seizing" evidence, whether on a computer or elsewhere, implies that the evidence will be incriminating. In this situation, however, the only evidence would likely exonerate me.
Early in the audit one of the agents confronted me that this all could have been so much easier had I just cooperated by signing Form 82 the week before. Although I will never be sure, I suspect they meant to imply that they subjected me to a more intimidating or disruptive audit to punish me for forcing them to get a warrant. In fact, though, because I had time to prepare, I believe things went more smoothly, and the timing disrupted my practice much less. Only one patient appeared in the waiting room while they were doing their dirty work, and he complimented me on my handling of the situation. (One of the agents seemed to be holding the door to the waiting room open during most of the audit.)
How would I handle the audit differently if I could do it again? First, I would not have volunteered access to my computer. As far as I can tell the warrant does not require me to allow DEA to commandeer my computer for its own purposes. Instead, I would have printed out a fresh copy of the log every day so I could simply present it to the auditors. I might also refuse to answer questions unrelated to my buprenorphine practice. I would really like to know whether DEA would revoke my license just because I refuse to confabulate office hours that do not exist.
What else did the auditors do wrong? When I did resist answering questions, citing absence of reference to interrogation in the warrant, I seem to recall at least a veiled threat of admonishment or revocation of my DEA number. When I sarcastically suggested that that might not be such a bad thing, agent Carter, a little too eagerly, offered to relieve me of the burden of the audit if I would surrender my special number. This same interaction has played out before around these audits elsewhere in the US, and I have seen at least one letter from a DEA field office claiming to deny any effort to discourage physicians from treating addicts with buprenorphine. Agent Carter's offer would seem to betray DEA's real position: By treating opiate addicts we threaten DEA job security. I believe the agancy would be very happy to have us abandon our efforts.
DEA also needs to get up to speed with computers and the Internet. I had provided agent Carter with access to my log at Google docs months ago. Let's compare the costs of two or more agents showing up only to be told they need to return with the warrant and five agents showing up the next week unnecessarily versus the cost of going online and peeking at my log at your leisure while sitting in your office downtown. Think about this next time you pay federal income tax. Maybe the auditors thought they would find a meth lab in my office. If so, they did not conduct a very thorough search. The whole exercise was a waste.
If you prescribe buprenorphine to treat drug addiction, I strongly suggest you place your prescribing log online. If DEA has not yet audited your practice, plan to refuse to sign Form 82 when agents arrive unless you are completely prepared, and they have arrived at a convenient time for your office. If we all force them to obtain warrants, maybe they will back down and start scheduling.
I cannot speak from experience since I have never wanted to stock any controlled substance in my office. When the opportunity presented itself for me to stock buprenorphine, I declined. I suspect those of you who do stock that drug or others will find the audit considerably more difficult regardless of whether you sign Form 82.
I initiated a moratorium on accepting new buprenorphine patients almost a year ago with the idea that I would end the moratorium after my audit was completed. I do plan to accept a few new patients for buprenorphine induction and maintenance, but before I will want to accept significant numbers of new patients (like anywhere near my limit of 100) I would like the United States government to deal with its ambivalence. All the agencies need to get together and decide whether they want us to treat addicts or not. If not, I certainly have better things to do with my time than subject myself to this kind of harassment.
DEA can chalk up another victory in the war on drug treatment.
The saga continues.