A referral arrangement can draw federal scrutiny under a law most health care providers have never encountered. An EKRA (Eliminating Kickbacks in Recovery Act) defense lawyer represents providers when compensation relationships become the focus of a criminal investigation.
EKRA applies to recovery homes and clinical treatment facilities, and it reaches laboratories even when no federal program funds are involved. A Texas financial and health care compliance lawyer helps identify where arrangements create criminal or regulatory risk.
At Bertolino LLP, we have defended Texas professionals since 2003 and represented thousands of licensed providers. We don’t send form letters. Reach out to our Client Success Liaison to schedule a complimentary consultation.
What EKRA Covers in Texas
A Texas civil malpractice defense lawyer recognizes EKRA as a statute most providers encounter for the first time when a federal notice arrives. Congress enacted it in 2018 as part of the SUPPORT for Patients and Communities Act, and it places lab referrals and substance use recovery referrals under the same criminal standard.
The statute’s reach differs from the Anti-Kickback Statute in one meaningful way. The AKS focuses on patients with federal health care program coverage, but EKRA reaches all patients regardless of payer, and paying or receiving remuneration to generate a referral can result in federal criminal charges.
EKRA defines remuneration broadly. A payment, a discounted service arrangement, or anything else of value offered to a referral source can fall within the statute.
The government may focus on the purpose and structure of the payment arrangement, not only on whether one payment can be matched to one specific patient referral.
How EKRA Investigations Begin in Texas
A lab billing audit can bring an EKRA investigation to a provider’s door before they have heard the term. By the time a formal notice arrives, the government may already have the file and a direction for the inquiry.
Common starting points for Texas EKRA investigations include the following:
- Tips filed with the HHS Office of Inspector General by employees, patients, or competitors
- Medicare billing data analysis that identifies unusual referral concentration in covered entities
- Qui tam lawsuits filed by relators under the False Claims Act
- State licensing board investigations that uncover payment arrangements between providers and covered entities
- DEA or FBI investigations into addiction treatment fraud that expose parallel EKRA conduct
We treat the day a notice arrives as the start of the defense, not a prelude to it. The government builds its picture of the arrangement from the first documents it receives, and the response strategy has to account for that from the beginning.
Texas EKRA Defense Attorneys Analyze Safe Harbor Coverage
EKRA includes safe harbors that protect certain compensation arrangements, but they require a precise fit. A bona fide employment relationship, for example, can protect a salaried employee from prosecution even when that employee refers patients to a covered entity.
Fair market value can support the defense record, but it does not solve every EKRA issue. When compensation rises or falls based on patient volume, lab submissions, testing activity, or amounts billed to a health care benefit program, the arrangement may fall outside EKRA’s protection.
The defense examines every agreement in the relationship for statutory fit. An EKRA defense attorney reviews the written terms, payment history, communications, and actual conduct to determine whether the record supports a protected arrangement.
When an EKRA Case Reaches Licensing in Texas
A federal EKRA investigation does not always stay contained to the criminal case. A Texas licensing board may learn about the allegations through a complaint, employer report, public filing, self-report, or related agency action.
A licensed professional who faces EKRA allegations may also receive notice from a Texas licensing board. The board can review the same underlying conduct, and that process may move on a different schedule than the federal case.
The written record in the federal case influences how the licensing board reads the same events. Statements made in federal proceedings can appear in a board investigation, and a coordinated defense strategy protects both the license and the federal case from that point forward.
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When EKRA and the False Claims Act Overlap in Texas
An EKRA investigation can precede or accompany a False Claims Act case. When a referral arrangement produces federal health care program billings, both statutes can apply to the same conduct, allowing the government to pursue claims under both.
The False Claims Act centers on whether claims submitted to the government were false or fraudulent. EKRA focuses on the referral relationship that generated them. When both run simultaneously, the defense must account for how responses in one proceeding affect the other.
A relator filing a qui tam lawsuit has financial incentive to connect every available theory of liability. When the same referral arrangement appears in both an FCA complaint and an EKRA charge, what a provider says in one case reaches the other without any additional effort from the government.
Building the EKRA Defense Record in Texas
The defense record in an EKRA case starts with the full history of the referral relationship. We reconstruct the arrangement from the original agreement forward and test each element against the statute’s requirements and the available safe harbors.
We look for specific documentation across the file, such as:
- The original referral agreement, including any amendments or supplements to the initial terms
- Compensation records showing payment amounts and timing relative to referral activity
- Fair market value documentation for services or arrangements claimed as safe harbor-protected
- Communications between the parties that describe the purpose or structure of the arrangement
- Billing records that show how the referral activity translated into claims or lab submissions
- Any compliance program records, training materials, or internal policies addressing EKRA
We arrange the record in a sequence that connects the arrangement to the statute and tests the government’s position against what the file actually shows. That work begins the first day we receive a notice, not after the government has already built its case.
Talk to an EKRA Defense Team in Texas
The first written response in an EKRA investigation becomes part of the record every proceeding reviews. Without a coordinated defense strategy, a written statement can appear in both the False Claims Act case and the licensing board review before a provider has a chance to address it.
Most providers who call us don’t yet know how far the investigation has progressed or whether their arrangement qualifies for safe harbor protection. That conversation changes what the defense looks like before anything goes into writing.
Bertolino LLP has represented thousands of licensed providers across the state. Our EKRA defense attorneys treat every case like the career it represents. Contact our Client Success Liaison today to schedule a complimentary consultation.
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