Florida Anti-Kickback Statutes & Patient Brokering Act
Federal Healthcare Fraud Defense Attorneys Serving Florida Health Care Professionals
While most physicians, pharmacists, nursing home administrators, and health care facility executives are aware of the stringent federal laws that apply to their businesses, far fewer have a clear understanding of the state laws that present equally substantial risks for their financial well-being. In Florida, there are numerous state laws that apply to all types of health care providers, and many of these laws impose substantial civil and criminal penalties. As a health care provider in Florida, it is critical to implement and maintain an up-to-date compliance program focused on both federal and state-level compliance – including the state laws that impose penalties for paying illegal “kickbacks” and other forms of compensation for patient referrals.
Health Care “Kickback” and Patient Referral Statutes in Florida
The following are brief summaries of the primary laws governing kickbacks and patient brokering in Florida.
1. The Florida Patient Brokering Act (Florida Statutes Section 817.505)
The Florida Patient Brokering Act is a state statute that imposes criminal penalties for four primary offenses involving compensated patient referrals. Violating the Act is a first-degree felony that carries a mandatory $500,000 penalty.
Subsections (1)(a) through (1)(d) of the statute outline the activities, transactions, and business relationships that can give rise to criminal culpability:
(a) Offer[ing] or pay[ing] a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engag[ing] 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[ing] or receiv[ing] a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engag[ing] 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[ing] or receiv[ing] a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engag[ing] 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[ing], abet[ting], advis[ing], or otherwise participat[ing] in the conduct prohibited under paragraph (a), paragraph (b), or paragraph (c).
As you can see, similar to the federal Stark Law and Anti-Kickback Statute, the prohibitions in the Florida Patient Brokering Act are subject to a broad interpretation. The Act also includes a number of specific exceptions. Health care providers in Florida need to have a clear understanding of the specific types of transactions outlawed by the Act, and they must tailor their compliance programs to ensure that their business practices will not trigger potential liability.
2. The Florida Anti-Kickback Statute (Florida Statutes Section 456.054)
The Florida Anti-Kickback Statute defines the term “kickback,” and states that offering, paying, soliciting, or receiving a kickback, either “directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients,” constitutes a violation of the Patient Brokering Act. For purposes of the Florida Anti-Kickback Statute, a “kickback” is any form of:
“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. Kickbacks and Bribes Constituting Medicaid Fraud (Florida Statutes Section 409.920)
Section 409.920 of the Florida Statutes outlines the various offenses that constitute Medicaid fraud in the State of Florida. Once such offense, set forth in Section 409.920(2)(a)5, relates to the payment and receipt of illegal bribes and kickbacks:
“A person may not . . . [k]nowingly solicit, offer, pay, or receive any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind, 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.”
4. Prohibited Rebates Under the Hospital Licensing and Regulation Law (Florida Statutes Section 395.0185)
Under Section 395.0185 of the Florida Statutes, it is a violation of the law, “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.” Licensed facilities include hospitals, ambulatory surgical centers, and mobile surgical facilities. For licensed entities, violations can result in disciplinary action by the appropriate licensing board. For unlicensed entities, violations of Section 395.0185 are punished by a fine not to exceed $1,000.
5. Prohibited Rebates for Pharmacies (Florida Statutes Section 465.185)
Section 465.185 of the Florida Statutes includes an anti-kickback provision that is virtually identical to that in Section 395.0185, but which applies specifically to registered pharmacies. Like Section 395.0185, Section 465.185 contemplates disciplinary action for licensed entities, and imposes a maximum fine of $1,000 for unlicensed entities that violate the law.
6. Prohibited Rebates for Nursing Homes and Related Facilities (Florida Statutes Section 400.176)
Section 400.176 of the Florida Statutes mirrors Sections 395.0185 and 465.185, but targets kickbacks involving nursing homes that are licensed to do business in Florida.
“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 [licensed] nursing home.”
Licensed nursing homes can face disciplinary action for paying and receiving illegal kickbacks, while other parties can face a fine of up to $5,000.
7. Bribes and Kickbacks Involving Nursing Homes and Related Facilities (Florida Statutes Section 400.17)
In addition to the prohibitions under Section 400.176, nursing homes and third parties that refer patients to nursing homes are also subject to the anti-bribery and anti-kickback provisions of Section 400.17. This Section of the Florida Statutes outlines four separate offenses involving nursing home related bribes and kickbacks, and uses the following definitions:
(a) “Bribe” means any consideration corruptly given, received, promised, solicited, or offered to any individual with intent or purpose to influence the performance of any act or omission.
(b) “Kickback” means that part of the payment for items or services which is returned to the payor by the provider of such items or services with the intent or purpose to induce the payor to purchase the items or services from the provider.
8. Disciplinary Action Against Licensed Physicians for Illegal Payments (Florida Statutes Section 458.331)
In addition to facing fines under the statutory sections referenced above that apply to kickbacks and other illegal forms of remuneration involving hospitals, pharmacies, nursing homes, and health care practices generally, physicians who pay and receive illegal kickbacks can also face license denial or other disciplinary action under Section 458.331(1)(i).
“The following acts constitute grounds for denial of a license or disciplinary action . . . [p]aying or receiving any commission, bonus, kickback, or rebate, or engaging 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.”
However, the law also clarifies that, “[t]he provisions of this paragraph shall not be construed to prevent a physician from receiving a fee for professional consultation services.”
9. Disciplinary Action Against Osteopathic Physicians for Illegal Payments (Florida Statutes Section 459.015)
Section 459.015(1)(j) of the Florida Statutes includes a provision virtually identical to Section 458.331(1)(i), but which applies specifically to licensed osteopathic physicians. It includes a similar prohibition on payment and receipt of illegal payments, and a parallel carveout for professional consultation fees.
Facing Allegations Involving Illegal Kickbacks, Bribes, and Patient Brokering in Florida
If your facility or medical practice is under investigation for its alleged involvement in the payment or receipt of any illegal form of compensation in connection with patient brokering or a patient referral, it is important that you seek experienced legal representation promptly. These investigations do not go away on their own, and it takes an experienced and tactful approach to prevent an investigation from leading to civil or criminal charges. At Oberheiden, P.C., we have decades of experience on both sides of state and federal health care fraud investigations, and our attorneys will only have one goal, for our clients to face as few consequences as possible as a result of investigations.