Optional_2023 Board Resources

a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice medicine. 121 The foregoing has been broadly interpreted to prohibit a MSO from charging a physician practice a fee based upon a percentage of a practice's profits or total revenues. In states like New York, in order to comply with applicable fee splitting prohibitions, a physician practice may compensate a MSO (or other unlicensed vendor) through a fixed fee which is consistent with fair market value for the services actually rendered. ARTICLE 9 ELIMINATING KICKBACKS IN RECOVERY ACT OF 2018 The Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”), which was effective on October 24, 2018, makes it a federal crime to pay for referrals to recovery homes, clinical treatment facilities, and laboratories. 122 Specifically, EKRA prohibits knowingly and willfully soliciting or receiving remuneration in return for referring a patient or patronage to a recover home, clinical treatment facility, or laboratory and paying or offering remuneration to induce a referral of an individual to, or in exchange for a person using, the services of that recovery home, clinical treatment facility, or laboratory. There are significant penalties for violations of up to $200,000 fines, 10 years in jail, or both for each occurrence. EKRA applies to services covered by a health care benefit program, which is defined as “any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.” 123 Thus, the law covers Federal health care programs, private insurance plans, and potentially self- pay patients. There is limited legislative history on EKRA. It appears to have been a relatively late addition to the omnibus bill addressing the national opioid epidemic, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act. 124 Based on a few statements by sponsors and questions posed to the Department of Health and Human Services, EKRA appears to have originated out of a concern with certain “body broker” activity in connection with substance use disorder treatment centers and a perceived gap in federal law that could address that activity. 125 “Patient brokering” or “body brokering” is generally referred to as 121 Id . 122 18 U.S.C. § 220(a). 123 18 U.S.C. § 220(e)(3); 18 U.S.C. § 24(b). 124 Pub. L. No. 115-271. 125 See , Press release of Sen. Rubio (R-FL), Oct. 24, 2018, available at https://www.rubio.senate.gov/public/index.cfm/press-releases?ID=5FD2D9DC-4FB8-4A44-A098-FC1113C89375 and Statement of Sen. Klobuchar (D-MN), Oct. 24, 2018, available at https://www.klobuchar.senate.gov/public/index.cfm/2018/10/klobuchar-s-bipartisan-bills-to-combat-the-opioid- epidemic-signed-into-law; Kevin Derby, Marco Rubio, Amy Klobuchar Want to Crack Down on Patient Brokering , Fla. Daily, July 23, 2018, https://www.floridadaily.com/marco-rubio-amy-klobuchar-want-to-crack-down-on- patient-brokering . ; Letter from Committee on Energy and Commerce, United States House of Representatives, to Thomas E. Price, M.D., Secretary of HHS (July 13, 2017), available at https://archives- energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/documents/20170713HHS.pdf. In response, HHS stated that “[t]o date, abusive payment arrangements involving opioid addiction treatment centers