Patient Brokering Exposed: What Behavioral Health Operators Need to Know About EKRA, Florida’s Patient Brokering Act, and the Marketing Contracts That Land You in Handcuffs

What I tell every founder and PE-backed buyer who walks into a diligence conversation: the compliance program has to start at the marketing contract, not at the chart. Here is what an operator-side review actually looks at.

• Compensation structure. W-2 employees, fixed salary, no commission tied to admissions or revenue. EKRA has fewer safe harbors than the AKS and notably does not protect volume-based or commission-based compensation for employees or contractors, even if they are W-2 employees. If your outreach team is paid per admit, you have an EKRA problem regardless of what your handbook says.
• Sober home relationships. No rent subsidies. No shared staff. No “we help each other out.” Written referral policies that document clinical fit, not financial exchange.
• Call center and lead vendors. Flat monthly fee for services rendered, benchmarked to fair market value, with deliverables that are not tied to patient volume or payer mix. Get the FMV opinion in writing.
• Marketing agreements with third parties. No percentage of collections. No per-lead pricing that varies with conversion. Written scope, hours logged, deliverables documented. The Ninth Circuit’s message to labs, physicians, and recovery centers is that marketing arrangements must preserve provider independence, because if marketers are effectively directing referrals, the arrangement likely violates EKRA.
• Ownership and referral overlap. If your treatment center and your lab share owners, that structure gets scrutinized hard by DOJ, HHS-OIG, and state Medicaid Fraud Control Units. Papered properly, it can work. Papered lazily, it becomes exhibit A.

Every operator I have worked with who received a subpoena had one thing in common. They knew the arrangement was aggressive. Somebody on the team, usually the CFO or the outreach director, had already flagged it. The founder chose census over caution. That is the moment a compliance program either exists or it does not.

Frequently asked questions

Does EKRA apply to my facility if we do not bill Medicare or Medicaid?

Yes. This is the single biggest misconception operators bring to a compliance review. EKRA is an all-payor statute codified at 18 U.S.C. § 220 that reaches services billed to any health care benefit program, and DOJ, HHS-OIG, and the FBI can all investigate it. As Morgan Lewis summarized after the Ninth Circuit’s Schena ruling, the AKS applies only to referrals involving federal healthcare programs, but EKRA applies to any healthcare benefit program, including private insurance and cash-pay patients. Cash-pay boutique programs are not exempt. Commercial-payer PHPs and IOPs are not exempt. If you pay for referrals, EKRA reaches you.

Can I pay my outreach team a commission if they are W-2 employees?

Be very careful. EKRA has a narrow employee exception, and its safe harbor language is narrower than the Anti-Kickback Statute equivalent. As Morgan Lewis notes, EKRA does not protect volume-based or commission-based compensation for employees or contractors, even if they are W-2 employees, so arrangements that might be lawful under the AKS may still violate EKRA. Percentage-of-collections comp and per-admit bonuses have been the subject of federal prosecutions by DOJ. The safer path is fixed salary with bonuses tied to activity metrics that are not volume-of-referrals or revenue-generated. Get a healthcare attorney to review the comp plan before rollout, not after a subpoena.

What penalties do operators actually face for patient brokering?

Federal EKRA violations under 18 U.S.C. § 220 carry up to 10 years in prison and fines up to $200,000 per occurrence, prosecuted by DOJ. Under Florida’s Patient Brokering Act, Fla. Stat. § 817.505, violators may be convicted of a first, second, or third-degree felony and fined from $50,000 to $500,000 per violation, prosecuted by the local State Attorney or the Florida Attorney General. Real federal sentences include Mark Schena’s 96-month prison term and more than $24 million in restitution in the case that produced the Ninth Circuit’s first EKRA appellate ruling. State licensure revocation through the Florida Department of Children and Families and payer network termination by commercial carriers typically follow.

Our sober home partner sends us patients and we pay them a monthly fee. Is that legal?

Almost certainly not, unless the fee is tied to specific, documented services at fair market value with no reference to referral volume. Florida’s Patient Brokering Act explicitly covers commissions, benefits, bonuses, rebates, kickbacks, bribes, and split-fee arrangements used to induce a referral, and violators can face fines from $50,000 to $500,000 per violation. A monthly stipend to a sober home that happens to feed you patients is the exact fact pattern the Palm Beach County Sober Homes Task Force has prosecuted for nearly a decade, and the same fact pattern DOJ and HHS-OIG alleged in the 2025 Arizona AHCCCS indictments, where one sober-living operator allegedly received approximately $739,000 in illegal kickbacks for referrals to a single outpatient clinic. Restructure now, before someone else does it for you.