Section 8122 of the 2018 Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act is referred to as the “Eliminating Kickbacks in Recovery Act of 2018” or “EKRA”. EKRA, which took effect on October 24, 2018, creates a new criminal provision for taking or paying a kickback for referrals to recovery homes, non-hospital addiction treatment settings, and clinical laboratories.
Such providers should take notice of the EKRA, since it changes the nature of the relationship the provider may have with marketers and other sales personnel. Basically, that which may have been permissible under the federal Anti-Kickback Statute, may not be permissible under EKRA.
Unlike the Anti-Kickback Statute, EKRA is an all-payor statute, meaning it applies not just to services payable by a federal health care program, such as Medicare or Medicaid, but also to services payable by a commercial insurer.
EKRA contains exceptions that are thematically similar to the Anti-Kickback Statute safe harbors. However, there are significant substantive differences in those exceptions.
For example, the EKRA exception for employees and independent contractors excludes payments made to an employee or independent contractor that is determined or varies by: (1) the number of individuals referred; (2) the number of tests or procedures performed; or (3) the amount billed or received. This means that non-hospital addiction treatment marketer relationships and laboratory marketer relationships, in which the marketer is paid commission-based compensation, are illegal.
Leslie M. Cumber
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