Eliminating Kickbacks in Recovery Act of 2018

Summary: Eliminating Kickbacks in Recovery Act of 2018 This bill amends the federal criminal code make it a crime to knowingly and willfully solicit, receive, pay, or offer payment for referrals to a recovery home, clinical treatment facility, or laboratory, subject to limitations. A violator is subject to criminal penalties&#8212;a fine, a prison term of up to 10 years, or both.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Eliminating Kickbacks in Recovery 
Act of 2018''.

SEC. 2. CRIMINAL PENALTIES.

    (a) In General.--Chapter 11 of title 18, United States Code, is 
amended by inserting after section 219 the following:
``Sec. 220. Illegal remunerations for referrals to recovery homes, 
              clinical treatment facilities, and laboratories
    ``(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 contract (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) Rule of Construction.--Neither actual knowledge of this 
section nor specific intent to commit a violation of this section shall 
be an element of an offense under this section.
    ``(d) 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).
    ``(e) Definitions.--In this section--
            ``(1) the terms `applicable beneficiary' and `applicable 
        drug' have the meanings given those terms in section 1860D-
        14A(g) of the Social Security Act (42 U.S.C. 1395w-114a(g));
            ``(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.''.
    (b) Clerical Amendment.--The table of sections for chapter 11 of 
title 18, United States Code, is amended by inserting after the item 
related to section 219 the following:

``220. Illegal remunerations for referrals to recovery homes, clinical 
                            treatment facilities, and laboratories.''.