COVID-19 Tests and Potential Kickback Enforcement

One of the largest issues hampering the re-opening of the American economy is that there are many asymptomatic yet contagious carriers of COVID-19. Rational leaders, medical experts, and scientists agree that widespread testing is essential to prevent further hotspots and determine which areas of the country may start to open again. Tests to determine whether a person is currently infected, as well as antibody tests to determine whether a person has been exposed and may have some immunity to the virus, will soon be widely available from many new sources. Companies cannot make informed decisions about when and how to re-open without knowing if their employees are healthy. State and local governments cannot determine how to move forward without this critical information. The federal government has assisted testing companies and labs by removing some of the FDA safeguards and time periods normally in place to ensure quality standards and safety.

With desperate need for widespread testing comes the opportunity for various fraudulent schemes and violations of a number of healthcare laws. One of the more recently enacted laws – the Eliminating Kickbacks in Recovery Act (EKRA) – makes it a federal crime “to solicit or receive payment in exchange for referring a patient to a . . . laboratory”, to “pay or offer any payment to induce someone to make” such a referral or to pay “in exchange for an individual using” a lab. The statute extended criminalization of such schemes beyond Medicare/Medicaid reimbursements to private insurance. .

Thus, under EKRA, a lab may not pay commissions to sales or marketing groups or employees based upon the number of tests received or reimbursed. Even if the person is a W-2 employee of the lab, payments to the employee on a commission basis may violate EKRA.

Individuals and companies in the healthcare industry must be aware of these very stringent regulations. In a desire to help the community, and to make a profit during these difficult times, it is incumbent on those involved to fully understand the financial arrangements and seek experienced counsel as to the legality of the contract/payment. Likewise, individuals seeking such tests must do their due diligence to help ensure that the company and tests offered are legitimate, accurate, and effective.

Our attorneys and staff are actively and aggressively defending our existing clients’ cases. We are also available to meet with new clients. Being mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person or through video conferencing, and have the capability to offer initial consultations by phone. Challenging times demand innovation and accommodation to our clients’ needs. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.