What is the Eliminating Kickbacks in Recovery Act (EKRA)?

EKRA is codified at 18 U.S.C. § 220. The key provisions of EKRA include:

● Prohibiting the solicitation or receipt of any remuneration in return for referring a patient to a recovery home, clinical treatment facility, or laboratory.

● Prohibiting the offer or payment of any remuneration to induce such referrals.

In United States v. Shah, the court discussed the Anti-Kickback Statute (AKS) [42 U.S.C. 1320a-7b(b)], which prohibits the solicitation or receipt of kickbacks for referring patients for services paid under federal health care programs (United States v. Shah, 95 F.4th 328 (2024)). EKRA extends these prohibitions to include private insurance payments.

The law is focused on people or companies that were getting paid for making referrals to:

● Recovery homes
● Clinical treatment facilities
● Laboratories

EKRA was enacted as part of the Substance Use-Disorder Prevention Act. EKRA was to created to prevent waste or theft from the program that more generally Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act). A key point is that EKRA applies to all payers, including private insurance. This means that EKRA prohibits kickbacks in situations where the payment is made by private insurers, not just federal programs like Medicare and Medicaid. In terms of interpreting EKRA, we expect the courts to apply AKS law to any EKRA issues.

If you are facing Stark law, AKS or EKRA issues, the Horowitz physician group has three State Bar of California certified specialists (Board of Legal Specialization). We are highly experienced in healthcare laws and federal criminal defense.