Before you take the client
Before you sign a substance-use treatment center client
The compensation rule that can turn a marketing deal into a felony, and the diligence that keeps you clear.
Weigh it before you sign, because the exposure is criminal, not just regulatory. Substance-use treatment marketing runs into EKRA, which bans volume-based referral pay across every payer, 42 CFR Part 2 confidentiality, state patient-brokering statutes, and a LegitScript gate on paid ads. Take the work, but keep the pay fixed and the claims clean.
The first question is not creative, it is how the client pays for patients. EKRA, the Eliminating Kickbacks in Recovery Act, makes it a federal crime to pay or receive anything of value for referring a patient to a recovery home, clinical treatment facility, or testing lab, and it is all-payer, reaching private insurance and cash pay, not only Medicare and Medicaid. Calling it a marketing fee does not save it if the fee moves with patient count. A fixed monthly retainer clears; pay tied to ad spend or deliverables depends on staying untethered from patient volume; per-lead, per-call that converts, per-admission, or a percentage of treatment revenue crosses the line and is the exact conduct the statute prosecutes. Decline the structure or decline the client.
Whoever knowingly and willfully solicits or receives, or pays or offers, any remuneration in return for referring a patient to a recovery home, clinical treatment facility, or laboratory, with respect to services covered by a health care benefit program, commits a federal offense.
- Federal crimeEKRA is a felony. Up to 200,000 dollars in fines and up to 10 years in prison per occurrence, and each referral can be charged separately.
- Federal overlapWhere a government payer is in the mix, the Anti-Kickback Statute and the False Claims Act can attach on top of EKRA.
- State crimeState patient-brokering laws add their own counts. Florida charges brokering as a third-degree felony under Fla. Stat. 817.505.
A treatment client hands you a second problem the moment you touch their patient stories. 42 CFR Part 2 protects the identity and records of anyone who sought substance use disorder treatment from a Part 2 program, is stricter than HIPAA, and under the 2024 Final Rule its compliance date passed on February 16, 2026, so no grace period is left. For an agency, that means testimonials, before-and-after arcs, family stories, and any content naming or showing a real patient need specific Part 2 consent on file, not a generic release; retargeting pixels and lookalike audiences built from patient lists raise the same question. Assume you cannot use a single identified patient until the client proves the paperwork exists.
A Part 2 program may disclose patient identifying information only with written consent that meets the rule's requirements, and the fact that a person has applied for or received substance use disorder treatment is itself protected.
Two more layers sit between the client and a live campaign. Most states criminalize patient brokering directly, and those laws often sweep in the same volume-based pay EKRA targets, sometimes with a lower intent bar; Florida is the aggressive example, worth knowing cold because so much treatment marketing runs through it. Then the paid channels will not carry the ads until the client is certified: LegitScript certification is the gate Google, Meta, and Microsoft put in front of addiction advertising, and it screens out exactly the lead-generation and referral-reselling models that create EKRA risk. A call center that resells admissions cannot be certified and cannot buy search ads. State exposure varies, so price the diligence into the engagement:
| State | How it differs | Citation |
|---|---|---|
| Florida | Patient Brokering Act criminalizes referral payments and split-fee deals as a third-degree felony, with steeper counts at ten or more patients. | Fla. Stat. 817.505 |
| California | Referral kickbacks and fee-splitting are barred, and the corporate practice bar limits who may own a treatment practice. | Cal. Bus. & Prof. Code 650, 2400 |
| All states | EKRA and 42 CFR Part 2 apply everywhere as the federal floor, before any state overlay. | 18 U.S.C. 220; 42 CFR Part 2 |
Before you countersign, confirm six things: the compensation is a fixed fee that does not move with patients, calls, or revenue; the client is licensed in its state and can back any clinical claim with something you can see; it is LegitScript certified or willing to start if paid search or social is in scope; someone owns patient testimonials and imagery with Part 2 consent on file for each; the client runs its own intake rather than buying or selling leads and admissions; and you have priced legal review of the funnel and named who signs off before launch. Run the client's live pages before the first call so the risk conversation starts from specifics, the diligence that keeps a treatment account from becoming your liability.
A contract is invisible to the scanner, but the compensation claim is not, and this is the line it would flag.
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.