Uncertainty Surrounding EKRA Could Hurt Behavioral Health Providers

For decades, behavioral health care was shrouded in stigma, making effective services hard to come by — and pay for. But now, need, payment and technology are aligning to make behavioral health care services more accessible than ever before.

In many ways, that’s a good thing: It means more people can successfully address issues related to mental health and substance abuse. But as coverage for behavioral health services expands, the industry has seen an influx of unethical providers hoping to capitalize on insurance payouts rather than to help patients.

While those providers are in the minority, they’ve changed the game for everyone operating in the behavioral health space, leading federal and state governments to crack down on substance abuse treatment facilities specifically.

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The Eliminating Kickback in Recovery Act of 2018 (EKRA) was passed in late 2018 in an attempt to address those concerns on a national level. But vague language and unclear rules in the legislation could hurt ethical providers, too, some legal experts believe.

Polsinelli shareholders tackled the topic recently in a webinar on behavioral health compliance. Kansas City, Missouri-based Polsinelli is a law firm with more than 875 attorneys in 21 offices nationwide.

“There was a perception that existing laws didn’t reach that type of conduct — didn’t reach patient brokering [or] travel issues,” Polsinelli shareholder Rick Rifenbark said during the webinar, noting that unscrupulous providers could operate within the law while abusing those areas in years past.

That’s because many existing laws aimed at curbing fraud — such as the federal anti-kickback statute — only apply to providers reimbursed by federal programs. However, a large portion of the drug treatment is often paid for out of pocket or by commercial insurers.

EKRA is meant to fill those gaps and provide oversight for providers nationwide who are not federally reimbursed.

The law creates criminal penalties for certain providers who knowingly solicit, receive, offer or pay remuneration in exchange for patient referrals or patronage. It applies to recovery homes, clinical treatment facilities and labs that provide services covered by a health care benefit program, with some exceptions.

For those operating outside the law, penalties are steep. Each occurrence can carry a fine of up to $200,000 or up to 10 years in prison.

Unintended consequences

EKRA is meant to target “unscrupulous actors who prey on patients seeking treatment to exploit their health insurance,” Minnesota Senator Amy Klobuchar, one of the legislators who originally proposed the act, told Congress.

However, Polsinelli shareholder Paul Gomez believes innocent providers may get lost in the crossfire due to unclear wording and explanations in EKRA.

“So what’s unclear?” Gomez said on the webinar. “A lot.”

And he’s not the only one who thinks so. New Jersey Congressman Frank Pallone also voiced his concerns to Congress last year, noting that EKRA “did not go through regular order and was not properly vetted.”

“Multiple stakeholders have raised concerns that the language does not do what we think it does,” Pallone said. “It may have unintended consequences.”

For example, Gomez said EKRA will likely put traditionally accepted marketing and call center agreements at risk — and that’s just the beginning. It also puts paid travel programs at risk and threatens the practice of discounting patient copays and fees, in addition to a number of other practices that have historically been commonplace, he said.

On top of that, it’s unclear to what extent EKRA will affect non-medical addiction treatment facilities and private pay entities, as well as labs.

Even more directly, there’s been debate surrounding whether or not EKRA contains a significant typo.

“It says EKRA should not apply to conduct that’s prohibited under the anti-kickback statute,” Gomez said. “And there’s some questions out there … about whether that was correct or perhaps that’s some kind of an error in drafting.”

Specifically, there’s speculation about whether the legislation should say that EKRA shouldn’t apply to conduct that is “not” prohibited under the anti kickback statute — or maybe that EKRA should not apply to conduct that is “permitted” under the anti-kick back statute.

Regardless, the sentiment of that portion of the legislation is confusing, Gomez contends.

“It’s still very unclear if an agency at the end of the day would pursue an EKRA violation for an arrangement that would be perfectly acceptable under the anti-kickback statute,” Paul said. “It may very well be, but we have to wait and see when enforcement begins in earnest.”

EKRA took effect on October 24, 2018.

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