Bass, Berry & Sims attorney Danielle Sloane and Chris Climo examined the impact that the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act (SUPPORT Act) will have on clinical laboratories in a guest blog post for G2 Intelligence. The SUPPORT Act was signed into law on October 24, 2018, in an effort to address the opioid crisis in the United States. Part of the bill included the Eliminating Kickbacks in Recovery Act of 2018 (EKRA) to combat patient brokering at treatment centers. Language governing clinical laboratories was included in EKRA even though not all clinical laboratories provide services related to drug treatment, recovery or testing.
According to the authors, “EKRA makes it a federal criminal offense (punishable by a fine of up to $200,000, imprisonment for up to 10 years, or both) to pay, receive, solicit or offer a cash or in-kind kickback, bribe or rebate (directly or indirectly, overtly or covertly) in return for referring a patient or patronage to a recovery home, clinical treatment facility, or laboratory. EKRA captures kickbacks paid not only to individuals who refer patients to a recovery home, clinical treatment facility or laboratory, but also directly to potential patients.”
Danielle and Chris go on to point out that “The language used to define the scope of this new private-payor liability seems to be significantly broader than what was intended at the outset. As written, the statute applies to laboratory referrals regardless of whether the laboratory services are related to addiction treatment or recovery services … Perhaps most pressing, however, is EKRA’s immediate impact on common laboratory arrangements, particularly commission-based sales arrangements.”
The full article, “New Broad All-Payor Kickback Law Impacting Laboratories, Commission-based Compensation and More,” was published on the G2 Intelligence Blog on January 10, 2019, and is available online.