EKRA and treatment center marketing: can you pay a marketer per admission?

Many marketing offers aimed at treatment centers sound attractive: pay only for results, pay per qualified call, pay per admission. In addiction treatment, those structures can expose a center to federal criminal liability. Here's what owners should know.

What EKRA is

The Eliminating Kickbacks in Recovery Act (EKRA) became law in October 2018 as part of the SUPPORT for Patients and Communities Act. It's codified at 18 U.S.C. § 220.

EKRA makes it a federal crime to knowingly and willfully:

• solicit or receive any remuneration in return for referring a patient to a recovery home, clinical treatment facility or laboratory, or
• pay or offer any remuneration to induce a referral, or in exchange for an individual using the services of one of those providers.

Penalties can reach $200,000 in fines, up to 10 years in prison, or both, per occurrence.

Why it matters more than the Anti-Kickback Statute

The federal Anti-Kickback Statute applies to federal health care programs such as Medicare and Medicaid. EKRA applies regardless of who pays, including commercial insurance and cash-pay patients. That's why it reaches the private-pay and commercially insured programs that the older law often didn't.

What this means for marketing contracts

A marketing vendor that's paid more when more patients are referred or admitted can look like the kind of arrangement EKRA targets. Structures to treat with caution include:

• a fee per admission or per "placed" patient,
• a fee per call, lead or inquiry that turns into a referral,
• bonuses tied to census or admission counts,
• revenue sharing on patient billing.

EKRA does include limited exceptions, for example for certain payments to employees and contractors that aren't determined by, and don't vary with, the number of people referred or the amount billed. Those exceptions are narrow and fact-specific, which is why owners should review any variable-pay arrangement with a healthcare attorney.

State patient brokering laws

Several states also have their own patient brokering or anti-kickback laws that apply to substance use treatment, some broader than EKRA. Check the rules in every state where you operate or market.

A safer structure: flat fees for the work

The simplest way to stay clear of these risks is to pay marketing partners a flat fee for defined work, the same amount whether you admit one patient or a hundred. That's how FirstCall Social prices: a flat monthly fee, never per lead, call or admission.

Questions to ask any marketing vendor

1. Does any part of your fee change with the number of leads, calls or admissions?
2. Will you sign an agreement that says so?
3. Do you buy, sell or route patient leads to other centers?
4. Will you sign a Business Associate Agreement?
5. How do you keep patient information out of your systems?

If the answers aren't clear, that's your answer.

This article is general information, not legal advice. Talk to a healthcare attorney about your center.