When Will The EKRA Ban On Commission-Based Sales Reps Be Lifted?
As part of ongoing efforts to combat the nationwide opioid crisis, Congress enacted the SUPPORT for Patients and Communities Act (SUPPORT Act) effective October 24, 2018. As part of the SUPPORT Act, Congress enacted the Eliminating Kickbacks in Recovery Act of 2018 (EKRA) which banned all CLIA laboratories from paying commissions to sales reps based on the number of patients referred, test volume, or the amount billed to a commercial health plan (see LE, April 2019 and December 2018).
Despite the threat of substantial fines and/or imprisonment, most labs have not yet changed the way they pay their sales reps in the hope that the law will soon be amended and directed more narrowly at toxicology labs.
On an April 30 conference call, LabCorp CEO David King said he believed the EKRA law was misguided and unintentionally overbroad. “We have been working with the legislative leadership in the Department of Justice. There has been legislative amendment language submitted to the congressional committees of jurisdiction and it’s being evaluated by the Department of Justice to make sure that the fix that would address the over-inclusiveness of the language is acceptable to DOJ as well as to legislators. So we continue to be optimistic that we’re going to get this resolved, but we don’t have a good estimate on the timing.”