II 115th CONGRESS 2d Session S. 3254 IN THE SENATE OF THE UNITED STATES July 19, 2018 Mr. Rubio (for himself and Ms. Klobuchar ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to establish criminal penalties for unlawful payments for referrals to recovery homes and clinical treatment facilities.

1. Short title This Act may be cited as the Eliminating Kickbacks in Recovery Act of 2018 . 2. Criminal penalties (a) In general Chapter 11 of title 18, United States Code, is amended by inserting after section 219 the following: 220. Illegal remunerations for referrals to recovery homes and clinical treatment facilities (a) Offense Except as provided in subsection (c), it shall be unlawful to, in or affecting interstate or foreign commerce, knowingly and willfully— (1) solicit or receive any remuneration (including any kickback, bribe, or rebate) directly or covertly, in cash or in kind, in return for referring a patient or patronage to a recovery home or clinical treatment facility; (2) being a recovery home or clinical treatment facility, or an officer or employee of a recovery home or clinical treatment facility acting in the course of their employment, pay or offering any remuneration (including any kickback, bribe, or rebate) directly or covertly, in cash or in kind, to— (A) a person in exchange for the person referring an individual to that recovery home or clinical treatment facility; or (B) an individual in exchange for that individual using the services of that recovery home or clinical treatment facility; or (3) being a clinical service provider, or an officer or employee of a clinical service provider acting in the course of their employment, pay, solicit, or receive any remuneration (including any kickback, bribe, or rebate) directly or covertly, in cash or in kind, to a recovery home or clinical treatment facility, or to an officer or employee of a recovery home or clinical treatment facility, in exchange for referring an individual with a substance use disorder to a clinical service provider for clinical services. (b) Penalty Any person who violates subsection (a) shall be fined not more than $200,000, imprisoned not more than 10 years, or both. (c) 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) any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services and the employee’s remuneration is not determined by the number of individuals referred to a particular recovery home or clinical treatment facility; (3) any amount paid by a vendor of goods or services to a person authorized to act as a purchasing agent for a group of individuals or entities who are furnishing services reimbursed if— (A) the person has a written contract, with each such individual or entity, which specifies the amount to be paid to the person, which amount may be a fixed amount or a fixed percentage of the value of the purchases made by each such individual or entity under the contract; and (B) in the case of a recovery home or clinical treatment facility that is a provider of services, the person discloses to the health care benefit program the remuneration received from each such vendor with respect to purchases made by or on behalf of the entity; (4) 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)); (5) any 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; (6) a waiver or discount (as defined in section 1001.952(h)(5) of title 42, Code of Federal Regulations, as in effect on the date of enactment of this section) of any coinsurance or copayment by a health care benefit program, as determined by the health care benefit program; or (7) any remuneration between a health center or entity described under clause (i) or (ii) of section 1905(l)(2)(B) of the Social Security Act ( 42 U.S.C. 1396d(l)(2)(B) ) and any individual or entity providing goods, items, services, donations, loans, or a combination thereof, to such health center entity pursuant to a contract, lease, grant, or other agreement, if such agreement 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 served by the health center entity. (d) Intent requirement With respect to a violation of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section. (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, residential treatment, or rehabilitation for substance use; (3) the term health care benefit program has the meaning given the term in section 24(b); and (4) the term recovery home means a shared living environment free from alcohol and illicit drug use and centered on peer support and connections to 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 and clinical treatment facilities. .