Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Nation’s First Conviction Under EKRA

Last month, the Department of Justice announced its first ever guilty plea under the Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”). This came following an investigation conducted by the U.S. Department of Health and Human Services, Office of Inspector General as well as the Kentucky Office of Attorney General, Medicaid Fraud Control Unit. The investigation uncovered that a Kentucky woman, Theresa C. Merced, had solicited kickbacks from a toxicology laboratory in exchange for urine drug testing referrals. She then lied about the misconduct and the kickbacks that she received when confronted by law enforcement. Thereafter, Ms. Merced attempted to cover her tracks by requesting an alteration of certain financial records.

Ms. Merced appeared before the United States Attorney’s Office for the Eastern District of Kentucky and pleaded guilty to one count of violating EKRA, 18 U.S.C. § 220, among other charges. Sentencing in this case is scheduled for May 1, 2020 and Ms. Merced faces up to 20 years in prison and a maximum fine of $250,000.

On October 5, 2018, the Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”) was signed into law as part of the federal government’s ongoing efforts to address and combat the nationwide opioid crisis. Like its predecessor, the federal Anti-Kickback Statute, EKRA established prohibitions against certain health care payment arrangements involving federal health care programs as well as instituted criminal sanctions for any statutory violation. What distinguishes EKRA, however, is that its authority applies to only certain entities including recovery homes, clinical treatment facilities, and laboratories.[1]

EKRA makes it illegal for any person, with respect to services covered by any health care benefit program (federal or private) to knowingly and willfully: (1) solicit or receive renumeration in return for referring a patient or patronage to a Subject Entity, or (2) pay or offer any renumeration to induce a referral to a Subject Entity or in exchange for an individual using the services of a Subject Entity.[2] A Subject Entity includes recovery homes, clinical treatment facilities, and laboratories. [3]

Penalties for a violation under EKRA can include a fine of not more than $200,000, imprisonment for not more than 10 years, or both, for each occurrence.[4]

For questions or more information about this topic, contact Jeana Singleton at jmsingleton@bmdllc.com or 330.253.2001, or feel free to contact any member of BMD’s Health Care Practice Group.

[1] Reesa N. Benkoff, Esq. & Dustin T. Wachler, Esq., EKRA: Enactment and Implications of the SUPPORT Act’s New All-Payor Federal Antikickback Law, American Bar Association (https://www.americanbar.org/groups/health_law/publications/aba_health_esource/2018-2019/march/ekra/).

[2] 18 U.S.C. § 220 (2018)

[3] Id.

[4] Id

 

 

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”