On October 24, 2018, The Eliminating Kickbacks in Recovery Act of 2018 (EKRA) became law (see LE, December 2018). EKRA was part of broader legislation (The SUPPORT Act) intended to address the national opioid crisis.

The EKRA law prohibits commission payments based on the number of patients referred to a laboratory, the number of tests performed, or the amount billed to or received from a “health care benefit program” (which includes commercial insurance plans as well as Medicare and Medicaid). EKRA applies to all laboratories (toxicology, molecular, routine clinical, anatomic pathology, et al.), not merely labs that perform testing for recovery homes and clinical treatment facilities. Violation of EKRA is punishable by a fine of up to $200,000 and/ or imprisonment of up to 10 years for each occurrence.

The American Clinical Laboratory Association and its largest member labs have lobbied to have EKRA narrowed so that it applies only to laboratories associated with substance abuse services. However, to date, no changes have been made to the EKRA law.

McDonald Hopkins’ attorney Rick Cooper says that although there are no changes to EKRA expected in the near term, there may eventually be some narrowing of the law made in the long horizon.