There are several laws in place that prevent medical professionals from taking kickbacks. They prohibit the offering and accepting of money, gifts, or any other compensation for referrals to any federal healthcare programs. The first law, the Anti-Kickback Statute (AKS), was enacted in 1972 as a Social Security Amendment.
A new federal statue, the Eliminating Kickbacks in Recovery Act of 2018 (EKRA), has brought some changes to the healthcare industry. It was passed last October, and certain providers that offer kickbacks may be subject to substantial civil and criminal penalties. Anyone found guilty of knowingly breaking these laws may be fined up to $200K, in addition to a 10-year prison sentence.
Why the EKRA Was Passed
The EKRA extends the scope of AKS by prohibiting referrals to laboratories, treatment facilities, and recovery homes. This was done in conjunction with the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act of 2018 (SUPPORT). The SUPPORT Act was enacted in response to the opioid crisis, and the EKRA can apply to any service or item that is paid for by a commercial or governmental healthcare insurance program.
The AKS is limited because it does not apply to federal healthcare programs. The problem of third-party facilities enrolling patients into private insurance plans and then into treatment facilities for kickbacks was an issue. This is referred to as patient brokering. In many cases, the patients were receiving poor treatment, while the insurance companies were paying.
There are some exceptions to the EKRA. Healthcare companies and referral sources may offer price reductions or discounts if they disclose this information and document it properly. Exceptions also apply to not offering reduced payments based on the amount of patients referred or procedures and tests completed. There are also guidelines for Medicare coverage and co-payment waivers. There are a total of seven exceptions to the EKRA.
The EKRA’s Broader Scope
EKRA regulations may apply when referrals are not for treatment services. Its legislation also specifies how laboratories, recovery homes, and clinical treatment facilities are defined. For example, it defines a clinical treatment facility as any outlet that offers outpatient or residential care, substance use rehab, and detoxification.
In addition, the EKRA’s definition of a laboratory extends to any type of clinical laboratory, including those that are responsible for clinical lab services. It does not specify that the services must be for addiction and recovery testing.
The Future of the EKRA
The EKRA was initiated to expand the AKS to further prevent illegal schemes that seek monies for patient referrals for addiction and recovery services. Some people feel that the EKRA’s scope is too large, since it may include referrals to services and facilities that are not associated with addiction and recovery treatments. It is possible that Congress my change the EKRA, trimming it down to apply more directly to these entities. In the meantime, medical professionals and staff members should be aware of the EKRA’s scope when treating patients and managing their recovery care.
Philadelphia Physician Lawyers at Sidney L. Gold & Associates, P.C. Help Physicians Understand Federal Healthcare Laws and Penalties
If you are a healthcare professional who has been affected by this legislation, contact the knowledgeable Philadelphia physician lawyers at Sidney L. Gold & Associates, P.C. Complete an online form or call us at 215-569-1999 today. Located in Philadelphia and Pennsauken, New Jersey, we represent physicians in Bucks County, Chester County, Delaware County, Montgomery County, and throughout New Jersey.