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

 

 

Families First Coronavirus Act (“FFCRA”) Under Attack

In response to the COVID-19 global pandemic, the Families First Coronavirus Act (“FFCRA” or “the Act”) went into effect on April 1, 2020 followed closely behind by the Department of Labor’s (“DOL”) Final Rule on the Act which, collectively, describe the obligations of employers as well as the rights of employees under the FFCRA’s paid sick time and expanded family medical leave provisions.

Lockdowns, Landlords, & Litigation: Abercrombie & Fitch Flips The Script on Simon Property Group Inc.

Novel litigation between commercial property owners and tenants arises from COVID-19 lockdowns. Typically, owners sue for nonpayment of rent. But in Franklin County, Ohio, a large retail tenant turned the tables and sued the owner to recoup payments.

UPDATE: Ohio Businesses Remain Required to Post Exceptions to State-Wide Mask Mandate at All Entrances

On August 1, 2020, Lance D. Himes, Interim Director of the Ohio Department of Health, issued an amended order continuing the requirement that Ohio businesses post at all entrances any permitted exceptions they provide to customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings.

2020 Marcum National Construction Survey Marks a New, Post-Pandemic Construction Environment

The results of the 2020 Marcum National Construction Survey are in, and the construction industry’s outlook for the remainder of 2020 and beginning of 2021 remains cautiously optimistic despite the COVID-19 global pandemic. Ability to find skilled labor, healthcare expenses, and material costs remain the top concerns for the industry, while “lack of future work” joins the list.

Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.