March 01, 2019

EKRA: Enactment and Implications of the SUPPORT Act’s New All-Payor Federal Antikickback Law

Reesa N. Benkoff, Esq. and Dustin T. Wachler, Esq., Royal Oak, MI

A.     Introduction

As part of the federal government’s ongoing efforts to combat the nationwide opioid crisis, Congress recently enacted the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act). Effective October 24, 2018, the SUPPORT Act reflects a bipartisan, comprehensive legislative initiative comprised of 70 individual bills intended to address the opioid crisis and other substance abuse by enhancing treatment and recovery programs, improving prevention and educational efforts, protecting communities, and fighting deadly synthetic drugs.1 Under Sections 8121 and 8122 of the SUPPORT Act, Congress enacted the Eliminating Kickbacks in Recovery Act of 2018 (EKRA) with the intent to prohibit individuals from referring substance abuse patients in exchange for kickbacks to recovery homes, clinical treatment facilities, and laboratories.2 ERKA addresses Congress’s concerns regarding the proliferation of patient brokers who profit off of patients seeking substance abuse treatment through “illicit referrals,” including “patient brokers who take advantage of patients with opioid use disorders by referring these patients to substandard or fraudulent providers in exchange for kickbacks.”3 As explained below, while EKRA addresses a significant concern in the substance abuse treatment industry, EKRA’s broad anti-kickback prohibition appears to exceed its underlying legislative intent to prohibit illicit referrals of substance abuse patients and raises significant questions regarding the applicability of EKRA to unrelated arrangements in the healthcare industry that could otherwise be structured to comply with existing federal law.

Premium Content For:
  • Health Law Section
Join - Now