New Federal Legislation Regarding Substance-Use Disorder Treatment

by Akerman LLP

Akerman LLPOn October 24, 2018, the federal government enacted comprehensive, bipartisan legislation intended to address America’s pandemic of opioid abuse. The Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act combines a broad array of policy initiatives taken from more than 60 pieces of legislation previously passed by the U.S. House of Representatives into a single bill that was approved by nearly every member of both chambers of Congress. The SUPPORT Act includes several anti-fraud provisions which, unlike many federal anti-fraud statutes, are directly applicable to private health plans as well as federal programs. Additionally, the SUPPORT Act provides a host of new programs and policies that range from a pilot program of electronic health record use for behavioral health professionals to provisions expanding the availability of medication-assisted treatment for Medicare beneficiaries. 

The Act also incorporates various measures aimed at preventing and combating fraud in connection with addiction treatment. Subtitle B of the SUPPORT Act, also known as the Opioid Addiction Recovery Fraud Prevention Act of 2018, is one such provision. Section 8023 makes it unlawful to engage in an unfair or deceptive act or practice with respect to any substance use disorder treatment service or product. As used in the Act, a “substance use disorder treatment service” is any service that purports to provide (i) referrals to treatment, (ii) treatment, or (iii) recovery housing for people who have or purport to have a substance use disorder. Similarly, a “substance use disorder treatment product” is any product “for use or marketed for use in the treatment, cure, or prevention of a substance use disorder[.]” Section 8023 provides for enforcement by the Federal Trade Commission.

The Eliminating Kickbacks in Recovery Act of 2018, incorporated as Subtitle J of the SUPPORT Act, is another example of anti-fraud provisions in the new law. Like the federal Anti-Kickback Statute set forth at 42 U.S.C. § 1320a–7b (“AKS”), the Eliminating Kickbacks in Recovery Act of 2018 (EKRA) is intended to prohibit the referral or exchange of substance use disorder patients or patronage for financial gain. EKRA makes it a federal crime to receive or offer remuneration for referrals to clinical treatment facilities, laboratories, and recovery homes.

While EKRA has many similarities to the AKS, it also contains a number of significant differences from prior federal prohibitions on kickbacks. Perhaps the most notable departure from the AKS, which only applies in cases involving federal health care programs, is that the SUPPORT Act’s kickback prohibition expressly applies to services covered by “any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual.” By expanding the kickback prohibition to private health plans (and non-federal public plans), the EKRA covers a much broader spectrum of relationships and referrals than are covered under the federal AKS.

The EKRA incorporates eight enumerated exceptions to its prohibitions. Like the AKS, the EKRA also includes an express delegation of authority to create new exceptions and/or clarify the statutory exceptions through regulations. Unlike the AKS, the EKRA delegates rulemaking authority to the United States Attorney General, not the Secretary of Health and Human Services (HHS), whom the AKS tasks with creating safe harbors to the AKS. Although the new law requires the Attorney General to consult with the Secretary of HHS on exceptions, it still creates the possibility that different agency prerogatives may lead to differences between the AKS and EKRA exceptions and safe harbors.

SUPPORT Act Statutory Exceptions

The statutory exceptions to the new anti-kickback provisions in the SUPPORT Act are:

(i) discount or price reduction under a health care benefit program if properly disclosed and appropriately reflected in the costs claimed or charges made by the provider or entity;

(ii) a payment to a bona fide employee or independent contractor, if the payment is not tied to the number of individuals referred, number of tests or procedures performed, or amount billed to or received from the referred individual’s health care benefit program;

(iii) a discount in the price of an applicable drug furnished to an applicable beneficiary under the Medicare coverage gap discount program;

(iv) a payment made as compensation under a personal services and management contract that meets the requirements of 42 C.F.R. § 1001.952(d);

(v) a waiver or discount of any coinsurance or copayment by a health care benefit program if it is not routinely provided and is provided in good faith;

(vi) remuneration provided to a federally qualified health center pursuant to an agreement that contributes to the ability of the health center entity to maintain or increase the availability, or enhance the quality, of services provided to a medically underserved population;

(vii) remuneration made pursuant to an alternative payment model or other payment arrangement that HHS has determined is necessary for care coordination or value-based care; and

(viii) any other payment, remuneration, discount, or reduction as determined by the Attorney General, in consultation with the Secretary of HHS, by regulation.

Although several of these exceptions closely resemble or simply cross-reference exceptions and safe harbors found in the AKS and its accompanying regulations, there are several important distinctions to be aware of with respect to the way the SUPPORT Act exceptions treat remunerations to employees and price reductions, as these may differ from the way the AKS treats these issues.

Of particular note, there are several differences between the EKRA’s exception for employment relationships and its AKS equivalent. The new law excepts certain compensation of independent contractors, which is not expressly protected by the AKS employment safe harbor.  However, the EKRA exception does not clearly exempt certain types of incentive-based compensation, like sales commissions, which employers may pay to bona fide employees under the AKS. Specifically, the bona fide employee exception in the SUPPORT Act does not extend to compensation that varies based on: (1) the number of individuals referred to a particular recovery home, clinical treatment facility, or laboratory; (2) the number of tests or procedures performed; or (3) the amount billed to or received from the health care benefit program from the individuals referred to a particular recovery home, clinical treatment facility, or laboratory. Notably, while a payment made to a bona fide employee based on the amount collected from a referred patient’s health care benefit plan would not be protected by the EKRA’s exception, the statute is silent with respect to employee compensation based on copayments, coinsurance or deductibles collected from patients.

Also noteworthy in the SUPPORT Act’s exceptions is that the SUPPORT Act relies on the statutory language from the AKS with respect to discounts. Under the AKS, HHS has adopted the view that the statutory exception protects price reductions only if the discount also complies with the regulatory safe harbor for discounts (set out in 42 C.F.R. § 1001.952(h)). The regulatory safe harbor is generally more restrictive and contains complex provisions for determining when a discount or price reduction is “properly disclosed and appropriately reflected in the costs claimed or charges made[.]” Thus, the use of the language from the AKS statutory exception in the EKRA (without incorporating the safe harbor language in 42 C.F.R. § 1001.952(h)) may mean particular discounting practices could satisfy the EKRA exception that would not be protected under the AKS – at least until the Attorney General promulgates regulations or formally adopts HHS’s position under the AKS framework. For example, the discount safe harbor applicable to the AKS excludes cash payments (except for a narrow class of rebates paid by check) from the definition of “discount.”  While this potential conflict remains unresolved, clinical treatment facilities, laboratories, and recovery homes will need to exercise caution when structuring “discounts” as the requirements of EKRA and the AKS may differ. 

Possible Impact on Florida Law

By its own terms, the SUPPORT Act’s new kickback prohibition is not intended to preempt state laws prohibiting the exchange of remuneration for patient referrals like Florida Statutes § 817.505 (“Patient Brokering Statute”) and Florida Statutes § 456.054 (“Florida Anti-Kickback Statute”). Although the Patient Brokering Statute and the EKRA have considerable overlap, there are several key differences that may impact how particular conduct by a provider or other entity should be analyzed for compliance. For instance, the Patient Brokering Statute incorporates an exemption for “[a]ny discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.” Because this exemption expressly references the AKS and its regulations, but not the SUPPORT Act, there are unresolved questions concerning conduct that falls within, for example, an EKRA exception, but not an AKS safe harbor.

A further point of differentiation between the state and federal statutes is that the Patient Brokering Statute explicitly prohibits split-fee arrangements. The Florida Anti-Kickback Statute, which prohibits health care providers and providers of health care services from exchanging remuneration for referring or soliciting patients, was recently amended to add broad prohibitions for any person or any entity to pay or receive remuneration for referring patients to a clinical laboratory. Unlike the Patient Brokering Statute, the Florida Anti-Kickback Statute does not provide any exceptions or safe harbors. Thus, care must be taken in any analysis to ensure all statutory exceptions are reviewed in detail and considered in conjunction with other laws that provide no exceptions or slightly different exceptions.


The SUPPORT Act features a potentially wide-ranging kickback prohibition with the capacity to impact all manner of activities related to recovery homes, clinical treatment facilities, and laboratories. Consequently, there will be considerable interest in seeing what approach the Attorney General ultimately takes in developing interpretive regulations under the EKRA to curb fraud and abuse in the context of substance abuse disorder treatment programs. The SUPPORT Act also offers broad, undefined exceptions, but little in the way of guidance as to whether HHS’s interpretations of analogous AKS exceptions and safe harbors will also apply to the SUPPORT Act or whether the Attorney General will create a unique enforcement scheme. Regardless, it is clear that the SUPPORT Act’s anti-kickback section is an important new tool to curb fraud and abuse in connection with substance use disorder treatment. Of course, we will continue to monitor developments in this area and provide further updates.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akerman LLP | Attorney Advertising

Written by:

Akerman LLP

Akerman LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.