Healthcare Regulatory Compliance: Florida Anti-Kickback Statutes

Florida Anti-Kickback Statutes

What Does Anti-Kickback Mean? And Does It Apply to My Florida Healthcare Practice?

A kickback is the practice whereby a person or business pays someone to find new clients or referrals and/or pays that person a percentage of the increased transactions resulting from those referrals. The objective of Florida’s anti-kickback statutes is to prohibit illegal “patient referrals between healthcare providers and entities providing healthcare services” for financial reasons (i.e. kickback). 

Anti-Kickback laws apply to all Florida healthcare service providers including, but not limited to, physicians, dentists, pharmacists, pharmacies, nursing homes, and hospitals. Florida’s Stark Law addresses situations in which the healthcare provider has a business interest in the facility to which he/she makes referrals.

The Anti-Kickback Statutes for Florida

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.

Why Should Healthcare Providers Care About Anti-Kickback Laws?

Anti-kickback statutes regularly affect the daily practices of Florida’s healthcare professionals. The business of healthcare generates frequent referrals back-and-forth between providers and hospitals, and sometimes these relationships provide unlawful financial incentives. 

All healthcare practitioners should understand if their inbound and outbound referral patterns are making them susceptible to liability under the Florida anti-kickback statute, because the penalties for non-compliance are severe.  For example, violations of the Patient Brokering law are third-degree felonies, punishable by up to five years (ten years for habitual offenders) imprisonment, and a $5,000 fine.

Kickbacks take many different forms, some obvious, like providers who accept cash in exchange for referrals. Others are more subtle, such as a hospital giving providers reduced office rent in exchange for the informal agreement to refer patients to the hospital. It is surprisingly easy to unintentionally run afoul of Florida’s anti-kickback laws.

However, even unintentional violations are prosecuted because the statutes do not require willful or knowing conduct. 

How Can Chapman Law Group Help?

Given the severe penalties under Florida’s anti-kickback laws, health care professionals and providers should work with an experienced health care attorney to ensure that their referral relationships are legitimate and do not lead to exposure under the law.

For three decades, the health care lawyers at Chapman Law Group have been helping health care practitioners in Miami, Tampa, Jacksonville, West Palm Beach, Orlando and all across Florida understand and comply with the anti-kickback laws. 

Our attorneys can help identify where your practice may not be in compliance, as well as whether any of your activities would receive exemptions or safe harbors (activities viewed as acceptable practices and depend on the circumstances of the relationship).

Contact us today and we’ll put our experience to work to keep your practice in compliance.

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