New Federal Law Targets Referrals to Substance Abuse Treatment Providers and Labs

On October 24, 2018, President Trump signed into law the new Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities (SUPPORT) Act. The SUPPORT Act contains a number of provisions aimed at addressing the opioid crisis. Section 8121 of the SUPPORT Act, separately referred to as the Eliminating Kickbacks in Recovery Act of 2018 (Act), contains a provision (to be codified at 18 U.S.C. § 220) that prohibits the payment of remuneration for referrals to certain providers.

The Act targets three types of providers whose involvement triggers application: (1) recovery homes, (2) clinical treatment facilities, and (3) laboratories. Recovery homes and clinical treatment facilities are specifically defined as facilities providing services related in some way to substance abuse treatment (though hospitals are excluded from the definition). However, laboratory is not defined by reference to substance abuse treatment, but applies broadly to facilities for “the biological, microbiological, serological, chemical, immuno-hematological, hematological, biophysical, cytological, pathological, or other examination of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings.” The broad definition of the types of entities covered, specifically labs, means that the Act has application beyond opioid-related treatment (or even other substance abuse treatment) because any referrals to these types of entities are potentially implicated, whether opioid-related or not.