18 U.S.C. § 220: Illegal remunerations for…

Summary

Makes it a crime to knowingly and willfully give, offer, solicit, or receive money or anything of value in return for referring someone to, or for a person using the services of, a recovery home, clinical treatment facility, or laboratory when the services are covered by a health care benefit program and the conduct affects interstate or foreign commerce. A person who does this can be fined up to $200,000, jailed for up to 10 years, or both, for each time it happens. Some payments are allowed. Examples include properly disclosed discounts that are shown in claims, normal employee or contractor pay that is not based on how many people are referred or how much is billed, certain Medicare drug discounts, payments under approved personal services contracts, non-routine, good-faith waivers of coinsurance or copays, payments allowed under parts of the Social Security Act, approved alternative payment models or state payment arrangements, and other payments the Attorney General and the Health and Human Services Secretary allow by rule. The Attorney General and HHS can make rules to explain these exceptions. This law does not replace other federal rules that already ban similar conduct under the Social Security Act, and it does not stop states from having their own laws. Defined terms: applicable beneficiary/applicable drug (Medicare gap terms), clinical treatment facility (non-hospital substance use treatment site), health care benefit program (defined elsewhere), laboratory (defined elsewhere), recovery home (shared, drug-free living with peer support).

Title 18, §220

Crimes and Criminal Procedure, Source: USLM XML via OLRC

(a)Offense.—

Except as provided in subsection (b), whoever, with respect to services covered by a health care benefit program, in or affecting interstate or foreign commerce, knowingly and willfully—

(1)solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind, in return for referring a patient or patronage to a recovery home, clinical treatment facility, or laboratory; or

(2)pays or offers any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind—

(A)to induce a referral of an individual to a recovery home, clinical treatment facility, or laboratory; or

(B)in exchange for an individual using the services of that recovery home, clinical treatment facility, or laboratory,

shall be fined not more than $200,000, imprisoned not more than 10 years, or both, for each occurrence.

(b)Applicability.—

Subsection (a) shall not apply to—

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

(2)a payment made by an employer to an employee or independent contractor (who has a bona fide employment or contractual relationship with such employer) for employment, if the employee’s payment is not determined by or does not vary by—

(A)the number of individuals referred to a particular recovery home, clinical treatment facility, or laboratory;

(B)the number of tests or procedures performed; or

(C)the amount billed to or received from, in part or in whole, the health care benefit program from the individuals referred to a particular recovery home, clinical treatment facility, or laboratory;

(3)a discount in the price of an applicable drug of a manufacturer that is furnished to an applicable beneficiary under the Medicare coverage gap discount program under section 1860D–14A(g) of the Social Security Act (42 U.S.C. 1395w–114a(g));

(4)a payment made by a principal to an agent as compensation for the services of the agent under a personal services and management contract that meets the requirements of section 1001.952(d) of title 42, Code of Federal Regulations, as in effect on the date of enactment of this section;

(5)a waiver or discount (as defined in section 1001.952(h)(5) of title 42, Code of Federal Regulations, or any successor regulation) of any coinsurance or copayment by a health care benefit program if—

(A)the waiver or discount is not routinely provided; and

(B)the waiver or discount is provided in good faith;

(6)a remuneration described in section 1128B(b)(3)(I) of the Social Security Act (42 U.S.C. 1320a–7b(b)(3)(I));

(7)a remuneration made pursuant to an alternative payment model (as defined in section 1833(z)(3)(C) of the Social Security Act) or pursuant to a payment arrangement used by a State, health insurance issuer, or group health plan if the Secretary of Health and Human Services has determined that such arrangement is necessary for care coordination or value-based care; or

(8)any other payment, remuneration, discount, or reduction as determined by the Attorney General, in consultation with the Secretary of Health and Human Services, by regulation.

(c)Regulations.—

The Attorney General, in consultation with the Secretary of Health and Human Services, may promulgate regulations to clarify the exceptions described in subsection (b).

(d)Preemption.—

(1)Federal law.—

This section shall not apply to conduct that is prohibited under section 1128B of the Social Security Act (42 U.S.C. 1320a–7b).

(2)State law.—

Nothing in this section shall be construed to occupy the field in which any provisions of this section operate to the exclusion of State laws on the same subject matter.

(e)Definitions.—

In this section

(1)

(2)the term “clinical treatment facility” means a medical setting, other than a hospital, that provides detoxification, risk reduction, outpatient treatment and care, residential treatment, or rehabilitation for substance use, pursuant to licensure or certification under State law;

(3)the term “health care benefit program” has the meaning given the term in section 24(b);

(4)the term “laboratory” has the meaning given the term in section 353 of the Public Health Service Act (42 U.S.C. 263a); and

(5)the term “recovery home” means a shared living environment that is, or purports to be, free from alcohol and illicit drug use and centered on peer support and connection to services that promote sustained recovery from substance use disorders.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The date of enactment of this section, referred to in subsec. (b)(4), is the date of enactment of Pub. L. 115–271, which was approved Oct. 24, 2018. section 1833(z)(3)(C) of the Social Security Act, referred to in subsec. (b)(7), is classified to section 1395l(z)(3)(C) of Title 42, The Public Health and Welfare.

Prior Provisions

A prior section 220 was renumbered section 215.

§220 Illegal Remunerations for Referrals to Recovery Homes, Clinical Treatment Facilities, and Laboratories