The Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”) became effective October 24, 2018. ERKA makes it a criminal offense to knowingly and willfully offer, pay, solicit or receive any remuneration (i.e., anything of value), directly or indirectly, overtly or covertly, in cash or in kind, to induce a referral (or in exchange for a referral) to a lab, clinical treatment facility or recovery home. Unlike the Federal Anti-Kickback Statue, ERKA applies to all payor sources.
Notably, the broad language of the ERKA permits the federal government to monitor arrangements intended to generate business for any laboratory, clinical treatment facility or recovery home for services payable by a federal health care program or commercial health insurers. ERKA includes certain exceptions, as well as “preemption” language tied to the Federal Anti-Kickback Statute.
It is important that labs, clinical treatment facilities (i.e., a medical setting, other than a hospital, that provides detoxification, risk reduction, outpatient treatment and care, residential treatment, or rehabilitation for substance use, pursuant to licensure or certification under State law), and recovery homes, critically examine current compensation arrangements with employees and contractors, as certain types of payment arrangements will now be prohibited.