What you need to know about the SUPPORT Act?

In October 2018, Congress enacted the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment, or SUPPORT, which aims to target full manufacturer-to-prescriber line of potential opioid-related fraud and misuse. Providers, prescribers, distributors and manufacturers across the health care spectrum should be aware of the SUPPORT Act’s broad provisions that will become effective over the next few years.

The Eliminating Kickbacks in Recovery Act (EKRA) is a smaller piece of the SUPPORT Act, but it became immediately effective.

The EKRA impacts the marketing activities of clinical labs, recovery homes, and treatment facilities. The EKRA makes payment structures that were perfectly acceptable under the safe harbors under the Anti-Kickback Statute (AKS) illegal.

Specifically, the EKRA makes it a federal crime to knowingly and willfully:

solicit or receive any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind, in return for referring a patient or patronage to a recovery home, clinical treatment facility, or laboratory; or

Pay or offer any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind –

to induce a referral of an individual to a recovery home, clinical treatment facility, or laboratory; or

in exchange for an individual using the services of that recovery home, clinical treatment facility, or laboratory.

A violation of the EKRA is punishable by up to ten years in prison and a $200,000 fine.

Unlike the AKS, the EKRA applies to all payors, including commercial health plans.

Additionally, the EKRA contains an exception for compensation paid to bona fide employees, but that exception is not applicable if the compensation paid varies with the number of individuals referred, the number of tests or procedures performed, or the amount billed to or received from a health plan.

Essentially, the EKRA makes commission based compensation for marketers employed by clinical laboratories, recovery homes, and clinical treatment centers close to impossible.