Faegre Drinker Consulting principal Michael Adelberg and director Matt Rubin, with Melissa Garrido and Kiersten Strombotne from Boston University, authored an article for Law360 titled “A Forgotten But Effective Tool Against Opioid Scams.” The article discusses the use of the Eliminating Kickbacks in Recovery Act (EKRA) over the past two years and how it can be leveraged as an effective tool going forward.
In October 2018, EKRA passed, creating a federal tool for prosecuting patient-broker rings that target vulnerable individuals with opioid use and substance use disorders.
The authors reported that the U.S. Centers for Disease Control and Prevention found that 13% of respondents had started or increased their substance misuse or abuse during the pandemic, with nearly one-third noting the symptoms of pandemic-induced anxiety or depressive disorders. And it’s estimated that the nation may see an overwhelming flood of patients seeking treatment during or after the pandemic, which is why it’s important that the nation leverage existing enforcement tools such as EKRA to mitigate harms posed by criminals who seek to profit off those seeking care.
In their article, they said that the use of EKRA has been underwhelming to date, with only two documented prosecutions of the law. The first is when U.S. Attorney for the District of New Jersey announced that two California men admitted to participating in a multistate patient-brokering scheme spanning the country, and the second is when the U.S. Attorney for the Eastern District of Kentucky charged Theresa Merced with one count of violating EKRA, among others, for her role in soliciting kickbacks.
The authors noted that the charges the U.S. Department of Justice brought in September against nearly 350 individuals thought to be responsible for more than $6 billion in health care fraud show that the issue of substance use disorder and opioid use disorder treatment fraud remains a pervasive threat to public health and patient safety.
The authors explain that because EKRA more clearly defines illegal remunerations and who is covered within its scope, the law may serve as an effective deterrent and enforcement tool — alongside others, such as Title 42 of the U.S. Code, Section 1320 — against fraud on federal health programs and against those who seek to illegally profit from substance use and opioid use disorder treatment-related services.