Are There Exceptions Under Ekra In Relation To The Anti-Kickback Statute
When it comes to healthcare fraud and abuse laws, two key statutes that often come up are the Anti-Kickback Statute (AKS) and the Eliminating Kickbacks in Recovery Act (EKRA). Both laws aim to prevent improper financial arrangements in the healthcare industry, but there are some key differences between the two. In this article, we will explore the relationship between EKRA and the Anti-Kickback Statute and discuss whether there are any exceptions under EKRA.
What is the Anti-Kickback Statute?
The Anti-Kickback Statute is a federal law that prohibits the exchange of anything of value in an effort to induce or reward referrals for services that are paid for by federal healthcare programs such as Medicare or Medicaid. The AKS is a criminal statute, meaning that individuals and entities found guilty of violating the law can face hefty fines, imprisonment, or both. The AKS is intended to protect patients and taxpayers from abuses in the healthcare system, such as overutilization of services or unnecessary referrals.
What is EKRA?
The Eliminating Kickbacks in Recovery Act, or EKRA, was passed as part of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act in 2018. EKRA specifically targets kickbacks related to services provided for the treatment of substance use disorders. Like the AKS, EKRA prohibits the solicitation, receipt, payment, or offer of remuneration in exchange for referrals for services covered by a healthcare benefit program.
Key Differences Between EKRA and the Anti-Kickback Statute
While both EKRA and the Anti-Kickback Statute aim to prevent kickbacks and fraud in the healthcare industry, there are some key differences between the two laws:
- Scope: EKRA applies specifically to services related to the treatment of substance use disorders, while the Anti-Kickback Statute applies more broadly to referrals for services paid for by federal healthcare programs.
- Intent: EKRA was passed in response to the opioid epidemic and is focused on addressing kickbacks related to substance use disorder treatment. The Anti-Kickback Statute has been in place for much longer and is designed to prevent fraud and abuse in the healthcare system as a whole.
- Penalties: While both laws carry criminal penalties for violations, the specific fines and punishments under EKRA may differ from those under the Anti-Kickback Statute.
Are There Any Exceptions Under EKRA?
One question that often arises in discussions about EKRA is whether there are any exceptions or safe harbors under the law. While the statute does not include specific exceptions like those found in the AKS safe harbor Regulations, there are some important distinctions to consider:
Bona Fide Employment Relationships
One potential exception under EKRA is for bona fide employment relationships. The statute specifically states that remuneration paid to an employee or independent contractor by an employer in a bona fide employment relationship is not considered a violation of the law. This means that Healthcare Providers who are properly compensated for their services by their employers should not run afoul of EKRA.
Family Members
Another area where EKRA may allow some flexibility is in payments made to family members for services rendered. The statute does not specifically address this issue, but it is possible that payments made to family members for legitimate services could be exempt from the law's prohibitions. However, Healthcare Providers should proceed with caution in these situations and ensure that any payments to family members are reasonable and properly documented.
Exempted Services
Under EKRA, certain services are exempt from the law's prohibitions. Specifically, EKRA does not apply to payments made for services that are both:
- Not related to the treatment of substance use disorders
- Provided by a healthcare entity that is not a recovery home, clinical treatment center, or clinical laboratory
This means that if a healthcare provider is receiving remuneration for services that do not fall under the umbrella of substance use disorder treatment, they may not be subject to EKRA's restrictions.
Conclusion
While EKRA does not have specific exceptions or safe harbors like the Anti-Kickback Statute, there are some situations where Healthcare Providers may be exempt from the law's prohibitions. By understanding the key differences between EKRA and the AKS and staying informed about the latest developments in healthcare fraud and abuse laws, providers can ensure that they are in compliance and avoid potential legal trouble.
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