New Anti-Kickback Provisions
March 28, 2019
To address this country’s opioid crisis and healthcare fraud, the Eliminating Kickbacks in Recovery Act of 2018 (EKRA) was passed last year by Congress. This Recovery Act falls under the SUPPORT Act umbrella and expands the federal Anti-Kickback Statute (AKS). EKRA includes additional provisions that apply to some laboratory and facility referrals and services.
The passage of EKRA makes is illegal for anyone to provide or receive a kickback to encourage a referral to a clinical lab, treatment facility, or recovery home. This includes licensed facilities that offer treatment for substance abuse, including those that provide non-opioid treatment. Maximum penalties for violating this statute are a $200,000 fine and 10 years in jail.
All-Payers
AKS only applies to federal health care programs while the Recovery Act is applicable to all Medicare and Medicaid services, as well as services paid for by commercial insurance companies. Therefore, the EKRA is considered an all-payer law. Payments to contracted companies or to employees determined by the amount of procedures carried out, amounts billed from the insurance company, or the number of patients referred are all illegal.
Many medical practices and facilities employ sales and marketing staff and pay them for their commission-based sales. The Office of the Inspector General (OIG) stated that these employees must be treated as independent contractors and must follow AKS regulations. The new EKRA rules apply to all types of clinical labs, not only those used for substance abuse services.
Exceptions
There are some exceptions, referred to as safe harbors, that may protect practitioners. These can include some co-payment waivers, Medicare prescription discounts for gap coverage, federal health centers that aid underserved populations, and the Shared Savings Program. Certain price discounts for health care benefit programs are allowed if they are appropriately disclosed and are shown in the amount that the provider charges.
Concerns Raised
The EKRA was introduced last summer by Senators Amy Klobuchar and Marco Rubio. Rubio said that opioid-addicted patients were being exploited by those wishing to profit from the crisis. Some lawmakers are raising questions about the EKRA’s scope and believe that it is making the situation more complicated. With EKRA and AKS laws in place, it can be overwhelming for physicians and other medical practitioners to determine what is legal and what is not. Understanding the finer points of these statutes is important and can make the difference when receiving fines.
Philadelphia Physician Lawyers at Sidney L. Gold & Associates, P.C. Help Physicians Understand Changes to Anti-Kickback Laws
If you are facing legal problems with an anti-kickback charge, contact the knowledgeable Philadelphia physician lawyers at Sidney L. Gold & Associates, P.C. for a free case evaluation today. Fill out an online form or call us at 215-569-1999. Our office is in Philadelphia, where we represent physicians in Bucks County, Chester County, Delaware County, and Montgomery County.
