The feds are coming down hard on anyone that is taking advantage of the COVID-19 pandemic for their own personal gain. They have various tools to help build cases against those that it believes misappropriates funds or otherwise abuses the system, but is EKRA one of them?
Congress passed the Eliminating Kickback Recovery Act (EKRA) as part of the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act) in 2018 to help give the government a strong legal tool to address the opioid epidemic. But could the federal government use it to target those it believes misuse the system during the COVID-19 pandemic?
#1: It is possible.
EKRA makes it illegal to solicit or receive payment for referring patients to labs, recovery homes or clinical treatment facilities. The language of EKRA is broad enough that it could apply to violations involving COVID-19 testing. In fact, one of the biggest critiques of the law is the fact that it is written so broadly it appears to exceed the initial legislative intent and had the potential to result in unintended consequences. Instead of just curbing unethical patient brokering, critics voiced concern EKRA’s broad language would not only extend the law beyond the intended health entities but also make valid marketing practices difficult.
Today, this broad language could mean the law extends to include those who are providing services connected to the COVID-19 pandemic.
#2: Audits can help.
If nothing else, this can serve as a reminder to regularly review practices within your lab to make sure everything is in line with applicable regulations and make changes as needed before a small problem escalates to serious violation.
#3: Defenses are available.
If under investigation, know that you do not have to simply comply and go along with the process. You are allowed to hire legal counsel to better ensure your rights are protected throughout the process. This can help you to have a better understanding of what is going on and carefully consider all available options to better ensure the most favorable outcome possible.
Attorney John Rivas is responsible for this communication