Congress enacted the Eliminating Kickbacks in Recovery Act (EKRA) in 2018 to address the potential for bribes, referred to as illegal kickbacks, between diagnostic labs, clinics and other clinical treatment facilities. Lawmakers enacted EKRA as part of the government’s efforts to address the opioid crisis, but the reality was much broader than anticipated. Instead of just dealing with opioid use and prescriptions, the provision essentially led to the prohibition of all payments made in exchange for those referring patients to labs and clinics.
This meant labs needed to reevaluate their partnerships and marketing strategies or else face allegations of a violation. EKRA violation, if substantiated, could come with penalties that include fines and imprisonment.
We saw how this law impacted labs in 2020. The details of the impact of these prosecutions and steps lab leadership can take to avoid similar allegations were discussed in a previous post, available here. Essentially, in one example the government successfully prosecuted an office manager for an EKRA violation who, when questioned about payment from a lab in exchange for using their services, allegedly lied and attempted to hide the funds. As a result, she was sentenced to ten months imprisonment. This shows the government is comfortable moving forward with prosecution of EKRA violations and pushing for the steep penalties that are available.
Legal experts expect these investigations to continue throughout 2021. The federal courts continue to navigate the best way to apply the provisions of the law and will likely have more opportunities in coming months. Why? Experts also predict an increase in EKRA cases as the government looks into allegations of COVID-19 related fraud connected to ramped up testing.
