The Effects of EKRA Law During the Pandemic

The COVID-19 global pandemic has taken its toll on almost every facet of everyday life. From tragic personal losses to job losses to economic losses, the impact of this pandemic is still yet to fully be realized as the world moves forward in its recovery.

The political ramifications of certain laws and how they have influenced, and are being influenced, by the pandemic, also need to be discussed. Certain realizations need to be made about previously written laws, such as EKRA, and how they interact with societal needs during this global COVID-19 pandemic.

What is EKRA?

EKRA is The Eliminating Kickbacks in Recovery Act, which was put in place in October 2018. This act is intended to avoid situations in which patient referrals would result in payments to specific laboratories or recovery centers. EKRA makes it illegal to accept referral bonuses when sending patients to certain laboratories and is not dependent on the reason for the referral. This law was originally enacted to block remuneration towards recovery centers during the opioid crisis currently sweeping the US.

While EKRA was enacted to deal with a kickback from laboratory owners and rehabilitation centers, with the current global pandemic it is quite likely possible that as more and more testing is required, so too will these laws come into play. So what is the EKRA impact on laboratories during the pandemic? Many effects can be posited, that we will see as the global pandemic and testings for COVID continue.

Language and Usage of EKRA

The wording of EKRA lends itself to being influenced and influenced by multiple facets of the healthcare world. As the pandemic goes on, and testing is conducted, with the privatized nature of healthcare in the United States there is a good chance that this law can help protect vulnerable populations during the pandemic as well. 

This law lists the specific fines and punishments that come from ordering tests and sending patients to specific laboratories for tests they don’t need and receiving money from those laboratories for providing them, clients. This coil opens the door for doctors and practitioners ordering COVID testing unnecessarily and receiving money from the laboratories for doing so. The EKRA law will protect the general public from unnecessary testing and provides a way to punish those who may choose to do so.

EKRA is there to deter healthcare fraud in a privatized system. Where sales and marketing are just as important as the actual healthcare services that are being provided, EKRA is in place to deter laboratories from paying heads of clinics for sending them, customers.

If testing is not required, but clinics refer patients, increasing their healthcare costs, it opens the door for EKRa to protect citizens from unnecessary and often costly testing and treatments.

EKRA and the Pandemic

With so many changes coming into the world due to the global pandemic, so too does this law change how companies need to operate. Even if a laboratory has been functioning and running in the same way for decades, especially concerning their marketing and sales staff, under EKRA maintaining the status quo is opening the door for prosecution.

As posited by the law review, ‘For instance, a laboratory that employs individuals to handle its marketing and sales services may now be at risk of violating EKRA—even if this is a practice it has been utilizing for decades.  Now, the act of paying any remuneration in connection with a referral carries the possibility of civil and criminal liability.  To avoid these consequences, laboratories must revise, reassess, and continuously monitor their marketing, sales, and patient broker arrangements.

EKRA and AKS

AKS is the Anti Kickback Statute, this was in place before EKRA, but had many areas that limited the ability to prosecute for healthcare fraud. AKS is specifically honed towards government-funded practices and does not have as large a reach as EKRA. Due to the all-encompassing language of EKRA, it is less specific. AKS contains safe harbors in regulatory exemptions, while EKRA has a much broader reach, and can touch aspects of healthcare fraud that AKS otherwise could not. 

EKRA does not contain the statutory regulations in the same way that AKS did, and was enacted to work outside of these regulations that can otherwise harbor criminal activity.

EKRA is more of a law in place to deter, rather than a law that is acted upon. While EKRA has been in place since 2018, only in 2020 have we seen several charges and prosecution of individuals and companies under this law.

EKRA is poised to become one of the most influential laws when it comes to how laboratories, medical clinics, practitioners, and sales staff interact with one another and the public. Especially as the vaccines come into place, it can be assumed that many more effects we cannot see at the current moment will come from this law.

What Does This Mean for 2021?

With 2021 looking to be the year where EKRA prosecutions began in full force, there is no way to truly divine exactly how the pandemic will influence and affect this law. If as the pandemic continues, doctors begin to send patients for unnecessary testing and receive payment from these laboratories, the door is being opened for prosecution under EKRA. 

EKRA is no longer seen as specifically targeted towards the opiate crisis, and as this pandemic counties, regulatory bodies may begin seeing more cases of healthcare fraud, with EKRA providing the means to prosecute and deter these instances. In a global pandemic, the last thing that should be happening is healthcare fraud, but it can be in these times that the worst can come out of people, it is open for observation how healthcare providers and laboratories will be affected by this global war on COVID-19.

This pandemic has thrown the world into a tizzy, many industries and people are suffering from the pandemic in ways that could never have been guessed at before it happened. The COVID-19 pandemic is opening society’s eyes and showing that even the best-laid plans can be shattered in a moment, and more time is needed to truly understand how the pandemic and EKRA will affect each other.

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