The Eliminating Kickbacks in Recovery Act (EKRA), passed in 2018 as part of the SUPPORT Act, was originally designed to combat fraud and abuse in substance use disorder treatment and recovery services. But in the years since, EKRA’s reach has proven broader than many providers may have anticipated. If you assume EKRA doesn’t apply to your practice, think again. Even providers outside the substance use treatment space can be affected, particularly if they provide or make referrals for laboratory services.
How EKRA Differs from the Anti-Kickback Statute
At first glance, EKRA looks a lot like the federal Anti-Kickback Statute (AKS). Both prohibit soliciting, offering, paying, or receiving anything of value in exchange for referrals. But there are two important differences:
- Scope of services – EKRA is limited to referrals to recovery homes, clinical treatment facilities, and laboratories.
- Payor neutrality – Unlike AKS, which only applies to services covered by federal healthcare programs, EKRA applies to all payers, including private insurance and self-pay patients.
This means that even cash-based arrangements can fall under EKRA if they involve the types of services it covers.
Penalties and Enforcement Trends
Violating EKRA is a criminal offense, carrying up to 10 years in prison and fines of up to $200,000 per violation.
Early enforcement targeted substance use disorder treatment and drug testing labs. But in recent years, prosecutors have broadened their focus to include non-toxicology labs, especially during the COVID-19 pandemic. For example, laboratory owners have been prosecuted for paying marketers based on the revenue they generated for COVID-19 and allergy testing services.
Ninth Circuit Guidance
A recent Ninth Circuit case clarified two key points about EKRA’s reach:
- Payments to intermediaries count: EKRA applies not just to payments made directly to providers, but also to marketers and sales representatives who influence downstream referrals.
- Commission-based pay is not automatically unlawful: Percentage-based compensation isn’t a per se violation. It violates EKRA when it involves wrongful conduct, such as deception, undue influence, or misrepresentation.
Compliance Takeaways
For healthcare organizations, compliance with EKRA requires more than relying on AKS policies. Consider these steps:
- Review compensation models – Pay special attention to commission structures for marketing and sales. Make sure they don’t incentivize misrepresentation or coercion.
- Train staff – Educate employees on what constitutes improper inducements and ensure marketing and sales practices are transparent.
- Develop EKRA-specific policies – Don’t assume AKS coverage is enough. EKRA has fewer safe harbors, and employment compensation safe harbors only apply when pay does not vary with referral volume or revenue.
- Monitor enforcement and case law – The Ninth Circuit’s ruling shows EKRA’s scope is still evolving. Compliance programs should adapt as courts and regulators provide more guidance.
Check out the Ep. 79 and the sample policy below. Free resources from previous episodes are here.
