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The government has traditionally restricted the use of kickbacks and banned conflicts of interest in health care delivery in order to protect patients and taxpayer funds. Apparently, Eliminating Kickbacks In Recovery Act (EKRA) Law is close to the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7bb (b). 

Kickbacks are also criminalized under the Anti-Kickback Statute (AKS) for goods and services provided by federal healthcare programs. But there are main differences that, when necessary, make Eliminating Kickbacks In Recovery Act (EKRA) a unique and useful tool.

Fraud schemes for health care come in several different ways and are carried out by companies around the health care sector. Manufacturers of medications, products, and supplies, health care professionals (such as physicians and hospitals), laboratories, insurance firms, and others have defrauded public health care systems.

The care that a patient receives should be focused on what is appropriate and necessary for that patient’s treatment, not whether their health care provider would financially benefit from choosing one treatment over another. 

In this article, you’ll know the importance of hiring an attorney who understands the EKRA law. To maintain compliance in regards to the EKRA laws, experienced healthcare attorneys help medical professionals and related companies and their customers as well to understand their new obligations under these laws.

The professionals from openbusiness.com offer financial, technology and innovation services and business information. The applicability of the EKRA law is extremely complex, as with all healthcare laws and regulations, and with such major possible implications, an experienced healthcare attorney should always conduct this assessment in order to help you.

What Is the Eliminating Kickbacks In Recovery Act (EKRA) Law?

The Eliminating Kickbacks in Recovery Act prevents anyone from paying, accepting or asking for any remuneration, in consideration of referrals to rehab homes, clinical care services or laboratories. 

This law was enacted by the Congress on October 24, 2018. The law, 18 U.S.C. § 220 (Illegal remunerations for referrals to recovery homes, clinical treatment facilities, and laboratories) is explained below.

Offenders: 

  • To people that request or receive any remuneration (including any kickback, bribe or rebate) in cash or in kind, directly or indirectly, publicly or covertly, in exchange for referring the patient or caregiver to a rehab home, clinical treatment center or laboratory.
  • To people that pay or sell, directly or indirectly, openly or covertly, in cash or in kind, any remuneration (including any kickback, bribe or rebate).
  • To people that induce a referral of an individual to a recovery home, clinical treatment facility, or laboratory; or in exchange for an individual using the services of that recovery home, clinical treatment facility, or laboratory.
  • Offenders shall be fined not more than $200,000, imprisoned not more than 10 years, or both, for each occurrence.

EKRA’s Background- How Does It Relate To The Situation Today?

The EKRA law was part of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act). There was an increase in demand for clinical and medical testing services last October 2018. In reaction to the opioid crisis, the EKRA law was passed. 

Although it was implemented to combat an entirely different crisis that has crippled areas of the nation, the scope of EKRA makes it specifically applicable to COVID-19 testing providers. It is extended to all laboratories and all payers not only limited to opioid abuse testing and federal healthcare programs.

Year 2020, patients and the public had been commonly checked for COVID-19 exposure. However, the rise in demand for COVID-19 testing raises its own set of possible enforcement issues and risks. 

Clinical laboratories providing COVID-19 research should take care to ensure conformity with the federal Anti-Kickback Statute (AKS) and the Eliminating Kickbacks in Recovery Act (EKRA).

How Does The Eliminating Kickbacks In Recovery Act (EKRA) Law Work?

Under EKRA, all recovery-related kickbacks can be investigated by prosecutors, not just those that threaten to affect the public revenue.

Many different types of services offer health care in many environments, such as hospitals, physicians’ offices, outpatient surgery centers, medical testing facilities, skilled nursing facilities, laboratories, home health and hospice organizations, ambulance companies, mental health facilities, and more. Fraudulent activities can and do occur in all these situations.

As it is referred to any facility covered by a health care insurance program, the EKRA removes that problem. Any public or private initiative that offers medical services is a health care insurance program. As a consequence, EKRA laws apply if medical services are rendered, whether the service is covered by public insurance, private insurance, or by self-payment by the patient.

Difference Between Anti-Kickback Statute (AKS) and Eliminating Kickbacks in Recovery Act (EKRA) Law

In connection with any governmental healthcare program, the Anti-Kickback Statute forbids knowingly and wilfully making a payment to encourage patient referrals or generate business. On the other hand, EKRA is applicable to “services covered by a benefit program for health care.”

Health care professionals and other persons who enter into agreements with or on behalf of rehabilitation homes, clinical treatment facilities and laboratories, therefore, must not depend on the AKS exemption to meet a similar exception under the EKRA. Instead, each law’s complexities must be considered separately.

EKRA 2021 Laws- There’s More

Investigations and trials have commenced and are expected to begin in 2021 for EKRA violations. Because of its potential to encompass not only a wider spectrum of conduct between laboratories, clinics, rehabilitation centers, or other therapeutic care facilities and their marketing employees, EKRA 2021 laws stand to be one of the most significant new pieces of legislation in 2021, but also because such conduct was previously considered permissible under the Anti-Kickback Law.

As the nation copes with COVID-19-related fraud and increased testing, treatment and care, federal government compliance and prosecution under EKRA are also likely to increase.

Conclusion

To summarize the EKRA laws, first, EKRA forbids any remuneration for the referral of patients to laboratories, clinics or treatment homes from being solicited or obtained. 

Next, EKRA amplifies the existing statutory law prohibiting paybacks by applying not only to government health care programs but also to private health care programs. 

Lastly, EKRA pressures laboratories and some healthcare providers in order to reassess their relationship with their sales and marketing employees.

In view of the similar but conflicting EKRA specifications and the current federal and state laws regulating the same arrangements, healthcare providers and other persons subject to EKRA should consult with a professional to assess the relevant federal and state laws for each arrangement and to understand how EKRA affects healthcare organizations. This is important because EKRA will result in both criminal charges and jail sentences.