Florida, like most other states, has enacted several laws targeting the health care industry that are similar to the federal laws that apply to physicians and other providers nationwide. As a result, providers in the state must not only develop (and continuously update) compliance programs focused on the intricacies of federal laws such as the Anti-Kickback Statute and Stark Law, but they must focus their compliance efforts on Florida’s state-specific requirements as well.
These state-specific requirements are substantial. Florida has no less than nine statutes that target kickbacks and referral fees, some of which apply universally, and some of which apply only to certain subsets of physicians and medical facilities. While these statutes are largely designed to mimic the requirements of federal law (and in many cases directly incorporate the provisions of federal enactments), they include several significant unique provisions as well.
Statutes that Apply Generally to the Health Care Industry
1. The Florida Patient Brokering Act (Florida Statutes Section 817.505)
Perhaps the most well-known of Florida’s health care fraud statutes, the Florida Patient Brokering Act (FPBA) is a criminal statute that outlaws various compensation arrangements in connection with patient referrals. The FPBA includes sweeping prohibitions which are tempered by a list of safe harbors and exceptions that authorize certain forms of remuneration under specifically-prescribed circumstances. Under the FPBA, it is a felony offense to:
(a) Offer or pay a commission, benefit, 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 a patient or patronage to or from a health care provider or health care facility;
(b) Solicit or receive a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for referring a patient or patronage to or from a health care provider or health care facility;
(c) Solicit or receive a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or acknowledgment of treatment from a health care provider or health care facility; or
(d) Aid, abet, advise, or otherwise participate in the conduct prohibited under paragraph (a), paragraph (b), or paragraph (c).
While the FPBA enumerates ten safe harbors and exceptions, the list of exempted transactions is actually much longer than meets the eye. This is because certain of the safe harbor provisions incorporate protections from other statutes, including the entire list of statutory and regulatory exceptions under the federal Anti-Kickback Statute. As a result, when health care providers in Florida seek to structure compensation arrangements or find themselves defending against allegations of illegal patient brokering, they need to work with experienced health care attorneys who have a comprehensive understanding of both Florida and federal law.
- The Florida Anti-Kickback Statute (Florida Statutes Section 456.054)
The Florida Anti-Kickback Statute is not as sweeping as its federal counterpart. Instead, it simply defines the term “kickback” and provides that to “offer, pay, solicit, or receive” a kickback constitutes patient brokering in violation of the FPBA. Under Florida law, “kickback” means:
“[A] remuneration or payment, by or on behalf of a provider of health care services or items, to any person as an incentive or inducement to refer patients for past or future services or items, when the payment is not tax-deductible as an ordinary and necessary expense.”
3. Prohibited Rebates (Florida Statutes Section 395.0185)
Under Florida’s Hospital Licensing and Regulation Law (Florida Statutes Section 395.0185), it is illegal “for any person to pay or receive any commission, bonus, kickback, or rebate or engage in any split-fee arrangement, in any form whatsoever, with any physician, surgeon, organization, or person, either directly or indirectly, for patients referred to a licensed facility.” The law defines “licensed facilities” to include:
- Ambulatory surgical centers
- Mobile surgical facilities
4. Medicaid Fraud (Florida Statutes Section 409.920)
Providers that bill Medicaid are subject to oversight at the state and federal levels and both state and federal laws prohibit the use of Medicaid funds to pay for patient referrals. In Florida, this prohibition is outlined in Section 409.920(2)(a)5 of the Florida Statutes:
“A person may not . . . [k]nowingly solicit, offer, pay, or receive any remuneration . . . in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made, in whole or in part, under the Medicaid program, or in return for obtaining, purchasing, leasing, ordering, or arranging for or recommending, obtaining, purchasing, leasing, or ordering any goods, facility, item, or service, for which payment may be made, in whole or in part, under the Medicaid program.”
Statutes that Apply to Specific Types of Health Care Facilities and Providers
1. Prohibited Rebates for Pharmacies (Florida Statutes Section 465.185)
Section 465.185 of the Florida Statutes prohibits compensation arrangements involving patient referrals to registered pharmacies. The law provides that, “[i]t is unlawful for any person to pay or receive any commission, bonus, kickback, or rebate or engage in any split-fee arrangement in any form whatsoever with any physician, surgeon, organization, agency, or person, either directly or indirectly.” Violations may be punished by regulatory disciplinary action and a fine not to exceed $1,000.
2. Prohibited Rebates, Bribes, and Kickbacks Involving Nursing Homes and Related Facilities (Florida Statutes Sections 400.176 and 400.17)
The language of Section 400.176 of the Florida Statutes is nearly identical to that of Section 465.185, but replaces registered pharmacies with licensed nursing homes. Additionally, the maximum fine is increased from $1,000 to $5,000.
“(1) It is unlawful for any person to pay or receive any commission, bonus, kickback, or rebate or engage in any split-fee arrangement in any form whatsoever with any physician, surgeon, organization, agency, or person, either directly or indirectly, for residents referred to a nursing home licensed under this part.
(2) The agency shall enforce subsection (1). In the case of an entity not licensed by the agency, administrative penalties may include:
(a) A fine not to exceed $5,000; and
(b) If applicable, a recommendation by the agency to the appropriate licensing board that disciplinary action be taken.”
Under Section 400.17, it is illegal to solicit, offer, or receive any kickback or bribe in connection with furnishing items or services to a nursing home resident. Violation of Section 400.17 is a first-degree misdemeanor punishable by up to one year of imprisonment, a fine of up to $5,000, or both.
3. Physician Discipline for Improper Payments for Patient Referrals (Florida Statutes Sections 458.331 and 459.015)
In addition to facing criminal penalties under the FPBA, physicians who engage in improper compensation arrangements can also face licensing action by the Department of Health or the Florida Board of Medicine. Under Section 458.331(1) of the Florida Statutes, with the exception of fees for professional consultation services, it is “grounds for denial of a license or disciplinary action” for a licensed physician to:
“Pay or receiv[e] any commission, bonus, kickback, or rebate, or engag[e] in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies.”
Section 459.015(1)(j) includes a similar prohibition that applies specifically to licensed osteopathic physicians.
What to Do if Your Practice Is Under Investigation for Patient Brokering or Illegal Kickbacks
If your medical practice or health care facility is being targeted in an investigation under the FBPA or one of Florida’s other anti-kickback statutes, it is critical that you promptly engage the services of a health care fraud defense attorney. Whether you are facing criminal penalties, loss of your license to operate or practice medicine in Florida, or both, you need to quickly implement a structured defense strategy focused on resolving the investigation without charges being filed. At Oberheiden, P.C., we represent health care providers in Florida and nationwide in state and federal investigations. Our services include:
- Representation by experienced health care fraud defense attorneys and former state and federal health care fraud prosecutors.
- Engaging with investigators and prosecutors to identify the grounds for the investigation and the specific violations being alleged.
- Raising statutory safe harbors and other defenses in order to convince prosecutors not to press charges.
- Negotiating favorable outcomes that allow our clients to continue operating their businesses and practices without the threat of license suspension or revocation.
- Conducting confidential internal assessments and developing comprehensive compliance programs that protect our clients from civil or criminal liability.
Contact Us for a Free and Confidential Case Assessment
If you would like to speak with the attorneys on our health care fraud defense team, please contact us to schedule your free case assessment. You can reach us 24/7, so call (888) 452-2503 or request an appointment online now.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.