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EKRA compliance: Questions and implications raised by new federal law

Reesa N. Benkoff (rbenkoff@wachler.com) is a Partner and Dustin T. Wachler (dwachler@wachler.com) is an Associate Attorney at Wachler & Associate PC in Royal Oak, Michigan.

Healthcare providers and other individuals and entities engaged in the healthcare industry must now comply with a new all-payer federal anti-kickback law applicable to recovery homes, clinical treatment facilities, and laboratories.[1] Effective October 24, 2018, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act) represents the culmination of the federal government’s year-long comprehensive, bipartisan, and bicameral legislative effort to both turn the tide of the tragic opioid epidemic and improve treatment options for individuals battling substance-use disorders.[2]

The SUPPORT Act includes 70 separate acts introduced by Congress to advance treatment and recovery initiatives, improve prevention and educational efforts, protect and provide resources to communities, and bolster efforts to fight deadly synthetic drugs.[3] As part of the SUPPORT Act, Congress enacted the Eliminating Kickbacks in Recovery Act of 2018 (EKRA). The intent of EKRA is to prohibit referrals of substance abuse patients in exchange for kickbacks from recovery homes, clinical treatment facilities, and laboratories.[4] The term “referral” is not defined under EKRA, however the Congressional Record indicates that EKRA is intended to apply to illicit referrals that include, but are not limited to, patient brokering by lay individuals who seek to profit by taking advantage of patients with opioid use disorders by referring these patients to substandard or fraudulent providers in exchange for kickbacks. EKRA was in fact enacted to prohibit patient-brokering of substance abuse patients on behalf of substance abuse treatment providers and facilities. EKRA also applies to referrals to clinical laboratories unrelated to substance abuse treatment.

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