Understanding the Safe Harbors Under Ekra

The Eliminating Kickbacks in Recovery Act (EKRA) was enacted in 2018 as part of the SUPPORT for Patients and Communities Act. The purpose of EKRA is to combat patient brokering and opioid addiction by prohibiting kickbacks in exchange for patient referrals to recovery homes, clinical treatment facilities, and laboratories.

What are Safe Harbors?

Safe harbors are provisions within laws or Regulations that specify certain actions that will not be subject to prosecution or penalties. In the case of EKRA, safe harbors provide protection for certain arrangements that might otherwise be considered violations of the law.

Safe Harbor #1: Discounts

One safe harbor under EKRA allows for discounts provided by recovery homes, clinical treatment facilities, or laboratories to be exempt from prosecution. The discount must be properly disclosed and reflected in the costs claimed by the provider.

Safe Harbor #2: Payments to Employees and Independent Contractors

Another safe harbor under EKRA pertains to payments made to employees and independent contractors. Payments made in the normal course of employment or contractual agreement are not considered violations of the law.

Requirements for Safe Harbor Compliance

1. Payments must be consistent with fair market value.
2. Payments must not be determined in a manner that takes into account the volume or value of referrals.
3. Payments must be made in a commercially reasonable manner.

Safe Harbor #3: Bonafide Employment Relationship

A third safe harbor under EKRA is for bonafide employment relationships. This safe harbor protects payments made between an employer and an employee for employment services rendered.

Safe Harbor #4: Personal Services Arrangements

Safe harbor #4 under EKRA pertains to personal services arrangements. This safe harbor protects payments made for services provided by individuals who have a personal services agreement with a recovery home, clinical treatment facility, or laboratory.

Requirements for Safe Harbor Compliance

1. The agreement must be in writing.
2. The agreement must specify the services to be provided.
3. The services must be for legitimate business purposes.

Safe Harbor #5: Waivers and Discounts by Recovery Homes

The fifth safe harbor under EKRA allows for recovery homes to waive copayments or deductibles as long as certain conditions are met. Recovery homes must meet the following requirements to qualify for this safe harbor:

1. The waiver or discount is not offered as part of an advertisement or solicitation.
2. The waiver or discount is not tied to the provision of other services.
3. The waiver or discount is provided in good faith to financially needy individuals.

Conclusion

Safe harbors under EKRA provide protections for certain arrangements that might otherwise be considered violations of the law. By understanding and complying with these safe harbors, providers can ensure that their arrangements are lawful and avoid prosecution or penalties under EKRA.

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