Before you take the client
Is your agency liable for a treatment client's marketing?
Three doctrines that do not care that you only wrote the copy.
Yes, more often than agencies assume. Three doctrines reach the vendor, not just the treatment center: EKRA covers marketing intermediaries after the Ninth Circuit's 2025 Schena decision, state patient-brokering statutes hit 'any person' who takes pay for referrals, and the FTC's means-and-instrumentalities theory reaches whoever supplies the tools of a deceptive campaign. Ghostwriting the ad is not a shield.
EKRA, the Eliminating Kickbacks in Recovery Act, makes it a felony to knowingly and willfully pay or receive remuneration to induce a referral to a recovery home, clinical treatment facility, or laboratory. Nothing limits it to the clinician who signs the order or the facility that books the bed: an agency paid to drive admissions can be the one paying or receiving the tainted remuneration. The word that does the damage is "indirectly," so routing a per-admission fee through a marketing contract does not launder it. Unlike the older Anti-Kickback Statute, EKRA also reaches private-pay and commercially insured patients, and the penalty is up to 200,000 dollars and ten years per occurrence, each payment a separate occurrence.
Whoever, with respect to services covered by a health care benefit program, knowingly and willfully pays or offers any remuneration (including any kickback, bribe, or rebate), directly or indirectly, in cash or in kind, to induce a referral of an individual to a 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.
For years defense lawyers argued EKRA only touched people who deal with patients face to face. The Ninth Circuit closed that door in United States v. Schena, decided July 11, 2025, the first appellate reading of the statute: a lab owner who paid marketers a percentage to push its testing argued they sat too far from the patient, and the court affirmed the conviction anyway. Schena settled that EKRA reaches marketing intermediaries, imposes no directness requirement, and that percentage-based pay is not automatically illegal but becomes an unlawful inducement when structured to unduly influence referrals. An out-of-house agency can sit squarely inside a federal kickback statute; fixed pay that does not move with the number or value of patients is the structure EKRA leaves alone.
The Ninth Circuit held that EKRA covers remuneration paid to marketing intermediaries who interface with those who make referrals, and imposes no requirement that the payment reach a person working directly with an individual patient.
Federal law is only the floor. Most treatment states run their own patient-brokering statutes, and the drafting choice that matters is the subject of the sentence. Florida's Patient Brokering Act does not say "a provider" or "a facility," it says "any person." Offer or pay a commission, bonus, rebate, kickback, or bribe to induce a referral and you are inside the statute whether you hold a clinical license or just send an invoice. That phrasing is deliberate and common across the brokering states, written after marketers, call centers, and lead brokers, not doctors, turned out to be the ones monetizing referrals. An agency that never touches a patient can still be the "person" who offered the inducement, and in Florida that is a felony.
It is unlawful for any person, including any health care provider or health care facility, to offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility.
Even where no referral fee changes hands, the Federal Trade Commission has a theory that reaches the shop that built the campaign. Under Section 5 of the FTC Act, supplying another party with the "means and instrumentalities" of a deception is treated as a direct violation, a doctrine tracing to FTC v. Winsted Hosiery Co. in 1922, where a maker that handed retailers mislabeled goods was liable although it never faced a consumer. Write the false success-rate claim, design the "unbiased helpline" that quietly routes to one buyer, or build the landing page that misrepresents who a caller reaches, and you supplied the instrument. How far this reaches genuinely neutral tools is contested, and the current Commission has floated a narrower test, so this is the softest of the three theories, but not a place to test your luck.
Under the means-and-instrumentalities doctrine, one who supplies another with the tools of a deception on the public can be held directly liable under Section 5, even without dealing with consumers.
The scanner cannot read your contract, but it reads the copy that gives the structure away. Volume-based referral pay is the line that flags.
We pay our marketing partners 500 dollars for every admission they send us.
Volume-based pay for referrals to a treatment facility is the exact conduct EKRA prosecutes; calling it a marketing fee does not cure it.
Our marketing partners earn a fixed monthly fee that does not change with volume.
Fixed pay untied to the number or value of patients is the safe structure under EKRA.
Sources
Pre-Trip is a rigorous screen, not legal advice. Counsel decides; we help you arrive prepared.