EKRA is a law enacted by Congress on 24 October 2018. It is an acronym that stands for Elimination of Kickbacks in the Recovery Act. It was brought in support of and as a part of the SUPPORT Act, which sought to regulate the opioid crisis engulfing the nation. As the name suggests, EKRA aimed at prohibiting kickbacks in the referral of patients to recovery centers, laboratories, and testing facilities.
EKRA sought to plug the shortcomings and loopholes in Anti Kickback Statute (AKS) that are being used by fraudulent individuals to receive kickbacks from healthcare providers. They do so in exchange for the referral of patients covered under various federal insurance schemes. As many of the guidelines of EKRA have still not been made public, there is uncertainty among healthcare providers as to how to comply with the EKRA law.
Important Things That Providers Need to Know About EKRA
EKRA is pretty similar to the earlier Anti Kickback Statute called AKS. This is the reason why providers remain confused regarding compliance with the Eliminating Kickbacks in Recovery Act (EKRA). While AKS applied only to federally administered insurance programs, EKRA applies to federal and state-level programs. Providers must comply with the provisions of AKS and also separately to the provisions of EKRA to avoid inviting the attention of investigating agencies.
Applicable to Patient Referrals in Treatment Facilities, Laboratories, and Testing Facilities
The provisions of EKRA apply to unlawful patient referrals in recovery centers as well as laboratories and testing facilities. Officials working in all healthcare providers and laboratories can be served notices for alleged violations of the provisions of EKRA. All kinds of remunerations offered in exchange for patient referrals have been prohibited under EKRA. For example, a physician who accepts kickbacks for referring a patient to a particular recovery center can be prosecuted under the provisions of EKRA.
There Are Some Exceptions to Remuneration Offered For Patient Referral
While EKRA prohibits all kinds of payments given and received in exchange for patient referrals, it allows for some exceptions that have been summarised under Section 220(b) of EKRA. These exceptions pertain to bonafide employee compensation, personal services rendered, and copay waivers allowed under the law.
Fines and Duration of Imprisonment Increased
Realizing the fact that kickbacks received by guilty parties in a particular case may be substantial depending upon the number of referrals, EKRA has sought to deter the violators by doubling the maximum fine and imprisonment duration. Violators can now be fined up to a maximum of $200,000 for each case of unlawful kickbacks. They can also be imprisoned for a maximum term of up to 10 years.
How to Make EKRA Compliance Feasible
The first case of a violator booked and fined under the new EKRA Act’s rules surfaced in January 2020. Providers are still examining the implications of this case, where the CEO of a testing facility has been fined for receiving kickbacks for an unlawful referral to a recovery center. These providers have become apprehensive as they do not know how to make compliance with the provisions of EKRA 100% sure.
There is no doubt that there are risks for all kinds of providers if they daily comply with the requirements of the EKRA Act. These providers need to have robust policies and procedures in place to make sure they do not attract the provisions of EKRA on their transactions in connection with the referral of patients to their centers and facilities. Most of these providers already have checks and balances in place to avoid the provisions of the anti-kickback statute (AKS). They just need to expand these procedures to include broader prohibitions that have been included in EKRA.
No One-Size-Fits-All Method to be Fully Complaint
Even though EKRA is now more than two years old, there are still many providers and owners of laboratories not knowing the provisions of this law. It is futile to expect complete compliance from these recovery centers, laboratories, and testing facilities as they have no idea of the implications of non-compliance. These entities are at risk of inviting penalties from federal investigating agencies.
Every center and facility needs to adopt a custom approach to avoid benign caught under the provisions of EKRA. The first thing to do is to keep all records of all transactions made to employees and third parties for the referral of patients. More and more recovery centers and testing facilities are hiring services of law firms and attorneys to safeguard their interests. It is prudent to pay a small fee to these lawyers knowing laws about EKRA and its provisions rather than receiving notices from investigating agencies and facing consequences of noncompliance.
The group of laboratories involved with Covid-19 testing is that the provisions of EKRA apply to them and not just testing facilities focussed upon drug abuse. They resent the fact that EKRA provisions have implications for all testing facilities. All transactions involving payment and receipt of money by these testing facilities are now under the scrutiny of the investigating agencies. The marketing arrangements that were exempt under the anti-kickback statute are now covered and prohibited under the provisions of EKRA. These clinical facilities now need to hire a health attorney to review their financial transactions to make sure they are compliant with the provisions of EKRA. These professionals are better equipped with knowledge of the law to interpret the narrowly defined exceptions of EKRA.
The key to being compliant with the provisions of EKRA and also to avoid harsh penalties for possible violations is to be vigilant all the time. Detailed documentation is the only way to meet the requirements of EKRA. If you are seen as being proactive and always ready with documentation to prove your compliance with EFRA provisions, authorities will likely view your case leniently. There are indeed increased compliance challenges in front of providers across the nation, but these challenges can be overcome with some effort and help from legal experts. The thing to keep in mind is that EKRA imposes more severe restrictions on financial transactions related to the referral of patients allowed under the earlier AKS.