EKRA and Admissions Staff Pay: The Referral Compensation File Behavioral Health Operators Need

Most behavioral health operators know the federal Anti-Kickback Statute. Far fewer have read the law that was written specifically for them. The Eliminating Kickbacks in Recovery Act, usually called EKRA, was passed in 2018 as part of the federal SUPPORT for Patients and Communities Act, and it reaches recovery homes, clinical treatment facilities and laboratories regardless of who pays for the care. If your admissions or business development team is paid in any way that moves with the number of clients they bring in, this is the file to pull this week.

This article is operational guidance for owners, clinical directors and compliance officers. It is not legal advice. Compensation arrangements that touch referrals should be reviewed by healthcare counsel before they are signed or changed.

What EKRA Is, Stated Plainly

The Eliminating Kickbacks in Recovery Act (EKRA) is a federal criminal statute, enacted in October 2018, that prohibits paying or receiving anything of value in exchange for referring a patient to a recovery home, clinical treatment facility or laboratory, or for inducing a referral to one. Unlike the Anti-Kickback Statute, EKRA applies when the services are covered by any health care benefit program, which includes commercial insurance, not only Medicare and Medicaid. Each violation carries a fine of up to $200,000, imprisonment of up to 10 years, or both, and the penalty is assessed per occurrence, so a compensation plan that pays a bonus on 40 admissions is not one problem but potentially 40.

That paragraph is the one to hand your CEO. The statute itself is part of the SUPPORT Act, which you can read in full on Congress.gov. Read the definitions section before you read anything else, because whether your program is a “clinical treatment facility” or a “recovery home” under the statute decides whether EKRA reaches you at all. In our experience, nearly every licensed SUD residential, PHP, IOP and outpatient program falls inside the treatment-facility definition, and many sober living operators fall inside the recovery-home definition.

Why Commercial-Pay Programs Assumed They Were Safe

For years, a common belief in the SUD sector was that a program with no Medicare or Medicaid contracts did not need to worry about kickback rules. EKRA was written to close that gap. It was a response to patient brokering in the commercially insured treatment market, where marketers were being paid per head to move clients between facilities and sober homes.

The practical result is that a cash-and-commercial program can now face federal criminal exposure for the same compensation design that a Medicaid program would. When we review a program that has never had federal payer contracts, the comp plan for admissions staff is frequently the single highest-risk document in the building, and it is usually sitting in HR rather than in the compliance binder.

Where Compensation Plans Create Exposure

The language that creates exposure is rarely the base salary. It is almost always in the bonus schedule, the offer letter addendum or the marketing vendor contract. These are the patterns we see most often in plan reviews.

• Per-admit bonuses: A fixed dollar amount paid for each client who admits is the clearest form of pay that varies with the number of individuals referred.
• Census-tied quarterly bonuses: Renaming a per-admit payment as a “census goal” or “team performance” bonus does not change how it is calculated, and the calculation is what a reviewer looks at.
• Percentage-of-collections arrangements: Paying business development staff a share of what the program bills or collects ties their pay to the amount billed, which is one of the variables EKRA’s employee exception specifically excludes.
• Per-lead or per-call vendor contracts: Outside marketing agencies, call centers and “referral networks” paid per qualified lead or per admission can bring the same exposure into the building through a contract rather than a paycheck.
• Things of value to clients or referral sources: Free flights, waived deductibles offered as an admissions inducement, “scholarship” beds offered to sober homes in exchange for placements, and gifts to referral sources are all remuneration, even when no cash changes hands.

The Employee Exception and Why It Is Narrower Than Operators Expect

EKRA contains a short list of exceptions. The one operators rely on most is the exception for payments to employees and independent contractors. The trap is that EKRA’s version of this exception is narrower than the bona fide employee safe harbor most people know from the Anti-Kickback Statute. Under EKRA, the payment to the employee or contractor must not be determined by, or vary by, the number of individuals referred, the number of tests or procedures performed, or the amount billed to or received from the payer.

In other words, the fact that your business development director is a W-2 employee does not by itself protect a bonus that moves with admissions. A flat salary paid regardless of volume is the cleanest structure. The Anti-Kickback Statute’s safe harbors do not map one-to-one onto EKRA’s exceptions, so an arrangement your counsel approved years ago under federal program rules may need a second review. Case law on this exception is still developing, so build policy around the conservative reading.

What a Reviewer Actually Asks For

Whether the inquiry comes from a payer special investigations unit, a state regulator or a federal investigator, the requests tend to land on the same small set of records.

• Every compensation plan, bonus schedule and offer letter for admissions, intake, outreach and business development staff, including the versions in effect in prior years.
• Payroll records showing bonus amounts actually paid, by person and by period, which a reviewer can line up against your admissions log.
• All marketing, call center, lead generation and “consulting” contracts, with their fee structures and invoices.
• Any agreements, formal or informal, with sober living homes, interventionists or other facilities that refer to or receive referrals from you.
• Your policy on things of value provided to prospective clients, including travel, and documentation of any patient financial assistance and how eligibility was decided.

The inconvenient operational truth is that the written plan is often fine and the payroll history is not. We regularly find a compliant salary-only offer letter sitting alongside a year of spreadsheet-calculated “spot bonuses” that track admissions almost exactly. A reviewer will compare the two, so you should compare them first.

How EKRA Fits With State Patient Brokering Laws and Your Compliance Program

EKRA does not replace state law. Several states have their own patient brokering or fee-splitting statutes, and some are stricter than the federal rule. If you operate in more than one state, each state’s rule applies in addition to EKRA, and a structure that passes one may fail another. Our compliance services team maps these overlapping rules for multistate operators as part of a broader program review.

Federal guidance on building an effective compliance program, including how to oversee arrangements with referral sources, is set out in the HHS Office of Inspector General’s General Compliance Program Guidance. SAMHSA also maintains an index of the statutes, regulations and guidelines that govern SUD treatment. Your compliance officer should own the referral-compensation file in the same way they own exclusion screening and HIPAA risk analysis. If you do not have that person in-house, a fractional compliance officer can take it on without a full-time hire.

If you want a second set of eyes on your admissions comp plan before your next payroll cycle, call Circa Behavioral at (888) 458-6619.

The Referral Compensation File to Build This Week

1. Pull every comp document: Collect the current and prior-year compensation plan for every person whose job touches admissions, outreach, intake or marketing, including contractors.
2. Highlight every variable: On each document, mark any payment that is calculated using number of admissions, census, number of tests, billed charges or collections.
3. Reconcile against payroll: Pull 12 months of bonus payments for those same people and compare the amounts to your admissions log by month. Look for bonuses that track admissions even where the written plan says they should not.
4. List every outside marketing relationship: Include agencies, call centers, lead vendors, interventionists and sober homes, with how each one is paid.
5. Send the flagged items to counsel: Anything highlighted in steps 2 through 4 goes to healthcare counsel for review, and no new variable compensation is signed until it has been reviewed.
6. Diary an annual review: Put a recurring date on the compliance calendar to repeat this reconciliation, ideally before annual bonus plans are finalized.

Programs that are already operating and want to pressure-test their structure can start with our page for treatment centers already operating.

One Thing to Do Today

Ask your payroll lead for one number: the total bonuses paid to admissions and business development staff in the last 12 months, broken out by month. Put it next to your monthly admissions count. If the two lines move together, you have found the conversation to have with counsel before anyone else has it with you. To talk through what you find, reach our team at (888) 458-6619.