18 U.S.C. § 220 - Eliminating Kickbacks in Recovery Act
The healthcare sector is governed by complex federal laws designed to prevent fraud and abuse, with severe penalties for violations. The primary law in this area, the federal Anti-Kickback Statute (AKS), has been in force for decades.
However, the introduction of the Eliminating Kickbacks in Recovery Act (EKRA) in 2018 has significantly upped the stakes for many healthcare providers and expanded the potential for violations and prosecutions.
EKRA and the Anti-Kickback Statute (AKS) are both laws designed to prevent kickbacks. However, EKRA is limited to specific services such as laboratories, recovery homes, and clinical treatment facilities, and it applies to all payors, including private insurance. In contrast, AKS mainly governs federal healthcare programs.
Additionally, EKRA features more restrictive safe harbors and significantly higher penalties to 20 years in prison and a $200,000 fine per violation-compared to AKS, which imposes penalties of up to 10 years and a $100,000 fine.
Let's take a closer look at these two key statutes and discuss the additional prosecution power that EKRA provides over the AKS.
An Overview of the Federal Anti-Kickback Statute (AKS)
The federal Anti-Kickback Statute, codified under 42 U.S.C. § 1320a-7b(b), is a criminal law that prohibits the knowing and willful exchange of remuneration to induce or reward patient referrals or the generation of business involving any item or service payable by a federal healthcare program.
These programs include Medicare, Medicaid, and TRICARE, among others. The core purpose of the AKS is to protect patients and federal healthcare programs from corruption and overutilization.
Remuneration under the statute is broadly defined to include anything of value, from direct payments to less obvious benefits such as expensive meals, travel, or excessive compensation for services.
A violation of the AKS is a felony, punishable by fines, imprisonment, and exclusion from participating in federal healthcare programs.
Key AKS Highlights
- The Anti-Kickback Statute (AKS) is a federal law that bans offering or accepting any form of payment, like cash, gifts, or other benefits, to influence or reward patient referrals for services or items covered by federal healthcare programs such as Medicare and Medicaid.
- The goal of the AKS is to ensure that medical needs, rather than financial incentives, drive patient care decisions. Violations can result in serious criminal penalties and may also lead to civil penalties under the False Claims Act.
The Emergence of the EKRA
Enacted in 2018 as part of the SUPPORT for Patients and Communities Act, EKRA was created to combat patient brokering and other corrupt practices fueled by the opioid crisis.
Codified at 18 U.S.C. § 220, EKRA makes it a federal crime to solicit, receive, pay, or offer any remuneration in exchange for referring a patient to a recovery home, clinical treatment facility, or laboratory.
Initially aimed at the substance abuse treatment industry, EKRA's language has a much broader application.
Its prohibitions extend beyond federal healthcare programs to include services covered by private health insurance plans.
This expansion represents a significant departure from the AKS and has profound implications for the entire healthcare industry.
Simply put, the Eliminating Kickbacks in Recovery Act (EKRA), enacted in 2018, is a federal law that bans kickbacks and illegal payments related to patient referrals to recovery homes, clinical treatment centers, and laboratories.
Unlike the federal Anti-Kickback Statute (AKS), EKRA covers all payers, such as private insurance and cash-pay patients, not only federal programs. Violations may lead to penalties of up to $200,000 and a maximum of 10 years in prison for each offense.
Differences Between EKRA and the AKS
While both statutes target kickbacks and overlap in some respects, several crucial distinctions make EKRA a more formidable tool for prosecutors.
- Broader Scope: One of the key differences is the broader scope of EKRA, which applies to all healthcare services reimbursed by any healthcare benefit program, including private insurance. In contrast, the AKS only applies to services paid for by federal and state healthcare programs.
- Different Intent Standard: The AKS requires proof that the defendant acted "knowingly and willfully," meaning they understood their conduct was unlawful. EKRA also requires "knowingly and willfully" paying or receiving remuneration for referrals, but does not explicitly require proof that the defendant knew their actions were illegal, potentially making it easier to prosecute.
- Safe Harbor Differences: While both laws include safe harbor protections, EKRA's are more limited. Unlike the AKS, EKRA prohibits commission-based compensation structures for employees and contractors if tied to referrals, tests performed, or amounts billed, making many common payment arrangements illegal.
Why EKRA Prosecutions Will Rise
While EKRA has been in force for several years, recent case law has clarified its broader scope, which is expected to lead to a significant increase in prosecutions under EKRA over the next few years.
In June 2025, the 9th Circuit ruled in United States v. Schena that kickbacks under EKRA include payments to third-party marketing agents to induce referrals from providers, even if made indirectly.
By covering private payers, EKRA brings a vast segment of the healthcare industry under federal jurisdiction for kickback-related offenses that were previously immune.
Business arrangements involving laboratories, diagnostic facilities, and treatment centers that were previously structured to comply with state laws and avoid the AKS may now be illegal under EKRA.
Furthermore, the stricter rules regarding employee and contractor compensation create significant risk. Sales and marketing professionals who have historically been paid on a commission basis for generating referrals are now exposed to federal criminal liability.
The limited, narrowly defined exceptions under EKRA leave little room for arrangements that could be construed as payments for referrals. This expansion gives federal prosecutors a powerful new weapon to pursue cases that were once outside their authority.
The Importance of a Federal Criminal Defense Attorney
An investigation under EKRA or the AKS is a serious matter with life-altering consequences. These intricate federal statutes and their evolving interpretations carry high stakes: lengthy prison sentences, substantial fines, and professional ruin. Suppose you are accused under either of these statutes.
Therefore, it is crucial to seek guidance from a skilled federal criminal defense attorney experienced in healthcare fraud cases. Such an attorney can thoroughly analyze your situation, identify potential defenses, navigate the federal justice system, scrutinize government evidence, challenge procedural errors, and negotiate with prosecutors.
Their expertise can be the key to a fair and favorable outcome. For more information, contact our federal criminal defense lawyer firm, Eisner Gorin LLP, in Los Angeles, CA.
If you have one phone call from jail, call us! If you are facing criminal charges,