Bradley attorney Jason Mehta was quoted in 360Dx on the Department of Justice’s use of the opioid bill’s Anti-Kickback Statute. The Eliminating Kickbacks in Recovery Act (EKRA) of 2018 was meant to outlaw patient brokering in the addiction treatment industry. However, many in the lab industry raised concerns that EKRA has criminalized common lab business practices.
Mehta said cases prosecuted under EKRA could have been prosecuted under traditional healthcare fraud law without reliance on EKRA. The cases “left many of our clients thinking that EKRA is not being widely used as an enforcement mechanism yet, and that traditional healthcare fraud is still kind of the playbook for the government,” he said.
While private payors continued to use the various tools at their disposal to limit lab spending, Mehta said EKRA has not played a particularly large role in this trend yet. However, he said he would still advise clients to avoid business arrangements that could run afoul of EKRA.
"Because EKRA is a criminal statute, it raises the stakes for laboratories," he said. "There is now the possibility of volume-based arrangements, whether it is federal payors or not, falling under scrutiny and potential criminal prosecution. We tell our clients that while EKRA might not be the most prolifically used statute at the moment, the risks are very significant, and they would be very well served to be exceptionally cautious."
The complete article, “Recent Prosecutions Give Labs Insight Into DOJ’s Use of Opioid Bill’s Anti-Kickback Statue,” first appeared in 360Dx on August 19, 2021.