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EKRA Law: What Is it And Why it Matters

EKRA is a law that has come into effect on 24 October 2018. EKRA is an acronym that stands for Eliminating Kickbacks in Recovery Act. It is a part of the broader SUPPORT for Patients and Communities Act in which SUPPORT means Substance-Use Disorder Prevention that promotes opioid recovery and treatment. Congress felt the need to enact EKRA as there were growing concerns that the earlier Anti Kickback Statute AKS was not providing sufficient protection to prevent opioid recovery treatment centers from receiving kickbacks in the recruitment of patients with the help of third parties. EKRA is pretty similar to AKS. But whereas AKS applied only to Federal healthcare programs, payments under EKRA apply to all payers, whether they are federal or state-level programs.

 

 

Despite the passage of the law in 2018, many healthcare providers across the country have little understanding of this anti-kickback statute called EKRA. The insufficient and perhaps distorted healthcare providers EKRA knowledge leads to violations that are not intentional and thus do not demand any penalty or imprisonment by the authorities. The fact of the matter is that EKRA applies mainly to these recovery centers that provide treatment to patients suffering from symptoms of opioid abuse. 



 

The new law prohibits these healthcare centers from either offering or accepting any kind of remuneration in exchange for referrals of patients covered under federal or state-run healthcare programs. Any violation of the terms and conditions explicitly mentioned in EKRA is liable for prosecution and imprisonment for a term not exceeding ten years or a fine of not more than $2,00,000, or both, depending upon the nature of the violation. 

 

EKRA applies to not just recovery centers but also testing laboratories and treatment clinics. The critical thing to keep in mind is that EKRA applies to all laboratories and not only those laboratories involved with the testing of opioid addiction. The maximum financial penalty envisaged under EKRA is 200,000, which is double the penalty suggested in AKS. 

Why Did the Government Feel the Need to Enact EKRA?

The government was receiving complaints from reliable sources that substance abuse disorder treatment centers were accepting and paying kickbacks to recruit patients covered under federal healthcare programs. The provisions of the existing law AKS were being misused to avoid being caught by the authorities. EKRA was enacted to put a brake on the practice of recruiting opioid abuse addicts to treatment facilities in return for kickbacks. If one reads the provisions of EKRA, he finds that the wording is pretty similar to the one used in AKS. However, the new law contains many provisions that are different from AKS. Some of these changes are as follows. 

 

AKS was only applicable to services and products that were paid for by federal healthcare programs. On the other hand, the provisions of EKRA apply to all payers, whether federal, state, or private. AKS applied to laboratories testing substance abuse only. On the other hand, the provisions of EKRA apply to all laboratories, and not just those testing opioid abuse. 

 

There are important exceptions provided under EKRA that allow treatment centers to give discounts or provide special services to the patient without inviting penalties under the law. These exclusions are similar to the one provided under AKS. However, some important differences are important for healthcare providers to keep in mind. The discounts and waivers given to co-payers and co-insurance holders in EKRA are quite different from those given under the earlier AKS. 

 

Also, the exception given to employees receiving remuneration under EKRA is narrower than what was provided under AKS. Also, healthcare providers can make payments to their genuine employees and independent contractors, provided such payments are not based on the total number of referrals. If such payments made to employees are related to the volume of referrals, the provisions of EKRA may apply to the healthcare provider. Do not pay volume-based remunerations to your employees if you want to avoid inviting penalties under EKRA. 

Critics Are Questioning the Impact of EKRA Regulations

More than two years have passed since Congress enacted EKRA. Still, many provisions of the law and even the guidelines have not been issued by the government. This has left many questions in the minds of healthcare providers. Some critics are questioning the true and intended impact of the law. There are also some expressions in EKRA that add to the confusion of the people. For example, at one point, EKRA says that its provisions do not apply to any conduct that has already been prohibited under federally administered AKS. Authorities supposed to identify violations and implement recommendations of penalties remain confused with the use of such language. They hesitate to prosecute violators, which puts a question mark against the efficacy of this new law. 

 

Doubled Penalty May Serve as a Deterrent

Violations of EKRA provisions attract financial penalties of up to $2,00000 while the prison term has also been doubled to up to 20 years. The authorities know how a single instance of EKRA violation can involve a huge sum of money and hundreds of patient referrals. The Department of Justice announced the first conviction under EKRA in January 2020. In this case, the manager of a substance abuse treatment center asked for bribes from a drug testing lab. Various substance abuse treatment centers are still studying the ramifications of this case.

 

EKRA is expected to play a big role in getting rid of kickbacks and frauds involved with government-funded healthcare schemes. It is also being watched closely by healthcare providers and testing facilities to see how the new law impacts their business in the times to come.  The fact that no testing facility is today immune from the application of the provisions of EKRA makes it even more interesting. The federal government has released a huge amount of money to help laboratories with Covid-19 testing. EKRA will ensure there is no fraud and misuse of this funding by testing facilities. As a treatment center or a testing facility, it is incumbent upon you to follow the provisions of EKRA to avoid penalties. 

 

 


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