EKRA Marketing Compensation: Paying Marketers Without Per-Admit Fees

EKRA marketing compensation became a board-level risk for treatment centers once the Ninth Circuit decided United States v. Schena, a case involving marketers paid a percentage of the revenue they generated. Sweet Media is a behavioral health marketing agency, and we price on a flat, month-to-month basis, never per admission, so we can describe the alternative from practice. This is general education, not legal advice, so confirm every structure with healthcare counsel.

What EKRA Marketing Compensation Covers

The Eliminating Kickbacks in Recovery Act, codified at 18 U.S.C. 220, makes it a crime to pay or receive remuneration to induce referrals to recovery homes, clinical treatment facilities and clinical laboratories. Congress passed it in 2018 as part of the SUPPORT for Patients and Communities Act to target patient brokering in addiction treatment.

Its reach extends to intermediaries. A marketing agency, a contracted lead vendor and a staff marketer can all be on the receiving end of prohibited payments, so the statute doesn't stop at clinicians and facility owners.

Why the Ninth Circuit Ruling Matters

The Morgan Lewis analysis of the Ninth Circuit ruling in Schena covers a case where the defendant paid his marketers a percentage of revenue. In 2023 he was sentenced to 8 years in federal prison and ordered to pay more than $24 million in restitution. For anyone paying marketers by results, it's the clearest enforcement example available.

Read the decision carefully, though. The court didn't hold that every percentage payment is illegal per se, and the government conceded as much at oral argument. The question was whether the pay was meant to wrongfully induce referrals. The decisions apply only in states covered by the Ninth Circuit, and Schena petitioned the Supreme Court in October 2025, which hadn't ruled as of that publication. Outside the Ninth Circuit, structure conservatively and let counsel tell you where the law is unsettled.

The missing per se rule is little comfort. Commission and percentage arrangements for marketers don't meet EKRA's safe harbors, so they invite a fact-intensive inquiry, and no bright-line test tells you in advance which side you're on.

How to Pay Marketers, BD Reps and Agencies

The working principle is that compensation shouldn't move with admissions, referrals or billing volume. The employee safe harbor only covers payments that don't vary with referral volume or amounts billed, so if a marketer's paycheck rises when census rises, you've built the link enforcement lawyers look for.

For W-2 staff, the employee safe harbor is narrow. It doesn't protect arrangements where pay varies with the number of people referred or the amount billed, so a salaried BD rep with a bonus on census is a plan to send to counsel, not a safe default. EKRA defines seven statutory safe harbors and no regulatory ones, and a commission plan that passes under the Anti-Kickback Statute can't be assumed to pass under EKRA.

For agencies, the lower-risk design is a fixed fee that pays for documented work, states deliverables or a monthly scope, and is set at fair market value. Paying an agency a percentage of revenue or a fee per admission ties the vendor's income to patients delivered, which is the Schena fact pattern. Percentage pay isn't unlawful on its own without wrongful inducement, but that's a defense to argue, not a design to plan around.

Pay-per-lead and pay-per-call deals sit in a gray zone. They aren't admissions, but they still reward referral volume, so have counsel review them before you sign, keeping in mind that the safe harbor reaches pay that varies with referral volume. Better ways to judge a marketer are media cost, qualified call quality, content shipped, and ranking and traffic movement, none of which should set their pay. Counsel's review of compensation models should also check that they don't incentivize misrepresentation or coercion.

EKRA Applies to Private Pay Too

EKRA isn't limited to Medicare and Medicaid. It applies to services covered by all payers, including private insurance and self-pay patients, so a private-pay center doesn't step outside it. The Anti-Kickback Statute applies only to services paid for by federal healthcare programs, and that wider payer reach is the main difference for addiction treatment marketing.

Penalties are criminal, up to 10 years in prison and fines of up to $200,000 per violation, a figure Baker Donelson also reports. State patient-brokering laws add another layer, and our guide to patient brokering laws by state covers that side.

How Sweet Media Structures Engagements

Our work covers SEO, paid media, web development and social media for behavioral health programs. Pricing is flat and month-to-month, so our income doesn't depend on who ends up admitted to your program.

We treat marketing as admissions infrastructure and report qualified leads and census support to you. Those numbers inform your strategy but never set our fee.

Compensation Structure Checklist

Start by confirming that nobody's pay rises or falls with admissions, census, referrals or billing. Each agency should get a fixed fee for defined deliverables at fair market value, and BD bonuses should rest on activity you can document rather than patients admitted. Written conduct and accuracy policies should govern what marketers tell prospective patients, and counsel should review every agreement and plan each year, including any with a lead vendor. Re-evaluating contracts for EKRA compliance should cover marketing, sales and patient broker arrangements, and commission structures should be checked so they don't incentivize misrepresentation or coercion.

If anyone's pay does move with those numbers, assume a problem until counsel says otherwise, because the safe harbors don't protect pay that varies with referrals.

FAQ

Does EKRA apply to commercial insurance or only to federal programs?

It applies to commercial insurance and self-pay as well. EKRA covers services paid by all payers, which is broader than the Anti-Kickback Statute.

Can treatment centers pay agencies a percentage of admissions revenue?

It's high risk because Schena involved percentage-based payments, even though percentage pay isn't a violation without wrongful inducement. A fixed fee for documented work is the safer design. Ask counsel before using any percentage-of-revenue model.

Can W-2 employees receive commissions under the safe harbor?

Generally not if the commission varies with referrals, since the employee safe harbor only applies when pay doesn't vary with referral volume. EKRA's safe harbors are fewer than the Anti-Kickback Statute's. Review any such plan with counsel.

If you want your marketing paid for work rather than admissions, you can book a free strategy call or request a free media audit with Sweet Media, and your counsel can review the structure before anything starts.