Healthcare Regulatory Compliance and Healthcare Fraud: Florida Anti-Kickback Statutes

1. Florida Anti-Kickback Statute – § 456.054, Fla. Stat.

It is unlawful for any healthcare provider to receive a kickback for referring or soliciting patients. Kickbacks are remuneration 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.

2.Florida Patient Brokering Act – § 817.505, Fla. Stat.

This is a criminal statute that provides that it is crime for any person, including health care providers and facilities, to offer or receive kickbacks, bonuses, commission or rebates, or engage in any split-fee arrangement, in return for referral of patients or patronage to or from a healthcare provider/facility. Violations of the Florida Patient Brokering Act is a third-degree felony, punishable by up to five years in prison.

Caution: The Patient Brokering statute includes many important exceptions (i.e. safe harbors), including arrangements such as those not prohibited by the Federal Anti-Kickback Statute; those within certain group practices; those within some contracted health benefit plans; and several other exceptions.

3. Rebates Prohibited – Hospital, ASC, Mobile Surgical Facility – § 395.0185, Fla. Stat.

It is unlawful for any person to pay or receive any commission, bonus, kickback, or rebate, or engaged 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 hospital, ambulatory surgical center or mobile surgical facility.

4. Rebates Prohibited – Pharmacy – § 465.185, Fla. Stat.

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 patients referred to a registered pharmacy.

5. Bribes, Kickbacks, Certain Solicitations Prohibited – Nursing Homes – § 400.17, Fla. Stat.

It is unlawful for any person who furnishes items or services directly or indirectly to a nursing home resident to solicit, offer or receive any kickback or bribe in connection with the furnishing of such items or services, or making or receipt of such payment, or return of part of an amount given in payment for referring any such individual to another person for the furnishing of such item or services.

6. Rebates Prohibited; Penalties – Nursing Homes – § 400.176, Fla. Stat.

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 indirectly, for residents referred to a nursing home.

7. Grounds for Disciplinary Action – Medical Practice – § 458.331(1)(i), Fla. Stat.

It is grounds for denial of license or disciplinary action to pay or receive any commission, bonus, kickback or rebate, or engage in any split-fee arrangement in any form whatsoever with a physician, organization, agency or person, directly or indirectly, for patients referred to providers of health care goods and services including, but not limited, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or pharmacies.

8. Grounds for Disciplinary Action – Osteopathic Medicine – § 459.015(1)(j), Fla. Stat.

It is grounds for denial of license or a disciplinary action for any kickback or to engage in any split-fee arrangement with a physician, or other business entity, for patients referred to providers of health care goods and services.

9. Medicaid Provider Fraud (Kickback provision) – § 409.920(2)(a)(5), Fla. Stat.

A person may not knowingly receive any kickback in return for referring an individual to a person for the furnishing of any item or service for which payment under the Medicaid program.