The Eliminating Kickbacks in Recovery Act: An Unprecedented Expansion of Anti-kickback Liability to Private-Pay Referrals?

In attempting to prohibit “patient brokering” in the narrow context of addiction treatment and recovery centers, Congress may have unwittingly passed an unprecedented expansion of federal prosecutorial authority over payment arrangements between providers and referral sources for private-pay patients.

At base, EKRA seeks to impose criminal liability for conduct similar to the conduct targeted by the AKS – that is, illicit schemes to pay or solicit payment for patient referrals – in the context of addiction treatment and recovery services. However, EKRA’s broad language may well permit federal prosecutors to bring charges based on remuneration provided in exchange for a referral to any laboratory or any non-hospital provider who provides addiction treatment or recovery services, even if the referral does not involve addiction treatment and recovery services. Accordingly, entities or individuals providing such services (even as a minor part of their service offerings), as well as all clinical laboratories, should evaluate their relationships and arrangements with all referral sources for private-pay patients to ensure that they do not involve any exchange of remuneration in exchange for patient referrals

Source: https://www.jdsupra.com/legalnews/the-eliminating-kickbacks-in-recovery-33983/