Clinical laboratories, recovery homes, and clinical treatment facilities should take note of a new law that expands kickback liability to non-governmental payors.
Similar to the prohibitions under the federal anti-kickback statute (AKS), EKRA generally prohibits (1) the solicitation or receipt of any remuneration in return for referring a patient to a laboratory, clinical treatment facility, or recovery home, and (2) the payment or offer of any remuneration to induce a referral of an individual to a laboratory, clinical treatment facility, or recovery home or in exchange for an individual using the services of a laboratory, clinical treatment facility, or recovery home.
Health care providers should note three key features of EKRA:
- First, EKRA applies to any “health care benefit program” which includes commercial payors and government programs. This is broader than the AKS which is limited to governmental payors.
- Second, EKRA covers clinical laboratory services provided at any laboratory subject to CLIA including services unrelated to opioid treatment and recovery.
- Third, EKRA is a criminal statute that contains a “knowing and willful” intent requirement.