The Department of Justice (DOJ) uses the Anti-Kickback Statute (AKS) as one of its primary tools to crackdown on healthcare fraud. This is a powerful and effective legal tool, but the government has recognized one key setback: the AKS is geared for those who use federal programs like Medicare and Medicaid. It is much more difficult for the feds to come after those who do not use these types of providers.
Difficult, but not impossible.
The government has found two ancillary tools that can serve as options to help the government come after practices that do not use federal programs. These tools, the Eliminating Kickbacks in Recovery Act (EKRA) and Travel Act can help the government to cast a wider net within the healthcare marketplace.
What should healthcare leaders know about EKRA and the Travel Act?
EKRA is relatively new, which makes it difficult to know how the government will use it. Congress passed EKRA as a part of a broader law to address the opioid crisis. Lawmakers included broad language that allows the government to wield this law in many different ways. For the purposes of this piece, the government can use it to pursue potential cases when it believes there is illegal remuneration in exchange for referrals or services of a diagnostic lab, recovery home, or clinical treatment facility.
Although EKRA appears to provide the government with a formidable tool, it is important to also watch out for allegations of a violation of the Travel Act. The government can use this law to go after those who use interstate commerce or the mail to promote or continue unlawful activity. Unlawful activity includes violation of state laws.
What are the penalties for a violation of these laws?
Although the details of potential penalties vary depending on the facts of the allegations, an EKRA violation can result in up to $200,000 penalty per violation and 10 years imprisonment. A violation of the Travel Act also comes with monetary penalties and up to 20 years in prison.
How can my practice or lab avoid allegations of a violation?
One of the best ways for leaders to mitigate the risk is to have a compliance program in place and conduct regular internal audits.
