I commented on a recent Ninth Circuit ruling clarifying a 2018 law that prohibits kickbacks for referring patients to medical testing labs and addiction treatment centers under the Eliminating Kickbacks in Recovery Act (EKRA).
“The ruling seems quite significant,” I told Law360. “For the first time in a criminal case, a circuit court has thoughtfully analyzed EKRA and concluded convincingly that violating EKRA requires more than paying a commission alone.” I added, the ruling “requires paying a commission combined with inappropriate marketing.”
The ruling provides some clarity for laboratories and substance abuse treatment providers. “This opinion will likely give a lot of labs, particularly smaller labs that have historically not felt like they had the financial capacity to take risks, more confidence to reinstate commissions along with strong compliance infrastructure,” I explained for the article.
In addition to any state-level kickback laws, “Labs and substance abuse providers should be careful to avoid pushing tests or services for purposes that go beyond payor coverage policies, particularly without credible support like a peer-reviewed study,” I said.
The full article, “9th Circ. Clarifies Kickback Boundaries For Referral Bonuses,” was published by Law360 on July 29 and is available online.