New Anti-Kickback Prohibition in Opioid Bill Creates Issues for PhysiciansNovember 29, 2018
In early October, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (the SUPPORT Act) was passed by Congress. The goal of the SUPPORT Act is to end opioid abuse through a strict regulation of the activities of drug treatment and rehabilitation centers, recovery facilities, and drug laboratories.
However, there is at least one provision of the Act that may be problematic for physicians around the country. Under the SUPPORT Act’s anti-kickback prohibition, physicians are facing serious compliance issues that may require the assistance of an experienced physician lawyer to navigate.
Anti-Kickback Prohibitions in the SUPPORT Act
Section 8122 of the SUPPORT Act makes it illegal for physicians to receive or offer compensation, such as a kickback, bribe, or rebate for referring patients to clinical treatment facilities, recovery institutions, or specific laboratories. The prohibition applies to all cases, even when the referral location is covered by a patient’s private insurance or under a federal health care program. Physicians who violate the anti-kickback prohibition could face monetary fines up to $200,000 and criminal penalties, including up to 10 years imprisonment for each illegal referral.
All federally funded health care programs already are subject to the federal Anti-Kickback Statute (AKS). The anti-kickback provision of the SUPPORT Act appears to apply to a broader range of medical entities than AKS. In addition to prohibiting the receipt of anything of value for referrals reimbursed by federal health care programs, the all payer prohibition in the SUPPORT Act applies to referrals of a broader range of health care programs, including public and private plans or contracts. The anti-kickback prohibition is in effect for all types of referrals to health care entities, not only referrals related to treatment for substance abuse or addiction treatment.
Important Exceptions to the Anti-Kickback Prohibitions
The SUPPORT Act sets forth seven statutory exceptions, which describe certain activities that would not fall under the anti-kickback prohibition in the new law. These exceptions include:
- Referrals made by certain physicians who work as independent contractors as employees of laboratories, recovery or rehabilitation homes, or clinical treatment sites
- Providing properly disclosed discounts or price reductions that comply with the federal regulatory safe harbor for discounts
- Discounting the price of medications provided to a Medicare coverage gap discount program beneficiary
- Waiving or discounting a co-insurance amount or co-payment by a health care benefit program if provided in good faith and on an occasional basis
- Compensating a federally qualified health center to assist the center’s ability to provide quality services to a medically underserved population
Public Reporting Under the SUPPORT Act
Another issue that potentially affects referring physicians under the SUPPORT Act involves an expansion of sunshine laws, which require drug and medical device manufacturers to make public any payments made to physicians and teaching hospitals. Also called the open payments provision, the need to publicly report payments under the SUPPORT Act also applies to payments made to physician assistances, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, and certified nurse midwives.
Philadelphia Physician Lawyers at Sidney L. Gold & Associates, P.C. Help Physicians Concerned with Anti-Kickback Prohibitions
If you are a physician affected by the anti-kickback prohibitions in the new Pennsylvania opioid law, the experienced Philadelphia physician lawyers at Sidney L. Gold & Associates, P.C. can assist you. To schedule your free initial consultation, call us today at 215-569-1999 or contact us online. Located in Philadelphia, we proudly serve clients from the surrounding areas, including Bucks County, Chester County, Delaware County, and Montgomery County.