Beta Icon

Florida Anti-Kickback Statutes: What Healthcare Facilities and Professionals Need to Know

One common goal healthcare professionals and facilities have, just like many other professionals and businesses, is customer satisfaction. Every doctor, hospital, and other facilities that provide healthcare services in one way or another seek to provide their patients with the best possible services. The reasons for this vary from complying with their professional code of conduct to profit-making, building a strong reputation, and of course, getting referrals from other providers.

It is well established and founded that more often than not, one healthcare provider is unable to attend to all the needs of a patient and would have to refer such a patient to other providers in order for the patient to get the best treatment possible. As great as this sounds, patient referral does have its challenges and laws have been put in place in Florida and at the federal level to avoid these challenges. These laws are referred to as the Anti-Kickback laws and codified in various applicable statutes in the state of Florida. The Florida Anti-Kickback Statutes will be discussed briefly in this article.

What is a Kickback and How Can it Come about in the Healthcare Industry?

 

A kickback, generally speaking, is a practice where a business or an individual professional pays someone to get referrals and/or pays a commission for the increased transactions as compensation for referrals. In the healthcare industry, it is where healthcare providers refer patients to one another in exchange for monetary compensation, a positive outcome, or a favorable decision.

The Anti-Kickback Statutes in Florida seek to prohibit illegal referrals of patients between healthcare professionals and facilities for financial reasons. The receipt of kickbacks broadly includes anything of value such as cash payments, gifts, favors, etc. This law applies to all Florida healthcare service providers including but not limited to hospitals, physicians, dentists, pharmacists, and nursing homes. The statutes ensure that the physicians or health care providers make referrals that are in the best interest of the patients and not the physicians’ wallets. The statutes seek to discourage physicians from making referrals to inappropriate or unnecessary medical services for personal benefits and by extension, minimizes the fraud on the government.

Who Can Be Charged With a Violation of the Anti-Kickback Statutes in Florida?

 

Anti-Kickback laws apply to all healthcare providers in Florida including, but not limited to:

  • Hospitals
  • Nursing Homes
  • Pharmacies
  • Pharmacists
  • Dentists
  • Physicians
  • Rehabilitation centers
  • Physical therapy clinics
  • Drug treatment facilities
  • Medical equipment companies

What Should Healthcare Professionals and Facilities Know about the Anti-Kickback Statutes?

 

All healthcare professionals should have a clear understanding of the outbound or inbound referral patterns that could make them susceptible under the Florida Anti-Kickback Statutes as there are criminal and civil liabilities for non-compliance.

Kickbacks can take many different forms and while some are obvious, like accepting money in return for referrals, others can be less obvious like a hospital giving lower rent in return for patient referrals. It is easy to unintentionally run afoul of anti-kickback laws in Florida. It is however pertinent to note that unintentional violations can also be prosecuted as the statutes do not always require the act to be willful conduct.

The Anti-Kickback Statutes Applicable in Florida

The anti-kickback statutes that apply in Florida, both generally and specifically are as follows-

  1. Florida Anti-Kickback Statute – § 456.054, Fla. Stat. – This statute defines a “kickback” as any form of:
    “remuneration or payment, by or on behalf of a provider of healthcare 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.”[1]
    This statute provides that offering, paying, soliciting, or receiving a kickback for referring or soliciting patients constitutes a violation of the Act.[2]
  1. Florida Patient Brokering Act – § 817.505, Fla. Stat. – This is a state statute that prohibits compensated patient referrals and imposes criminal penalties for the same. A violation of the Act is a first-degree felony and it carries a mandatory $500,000 penalty. Subsections (1)(a) –(1)(d) of this statute outline the activities that will be considered violations of the Act.
  1. Rebates Prohibited – Hospital, ASC, Mobile Surgical Facility – § 395.0185, Fla. Stat. – This section of the Florida Statutes states that:
    “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, or person, either directly or indirectly, for patients referred to a licensed facility.” [3]
    Violations can result in disciplinary action and/or fines.
  1. Rebates Prohibited – Pharmacy – § 465.185, Fla. Stat. – This section includes an Anti-Kickback provision that applies specifically to registered pharmacies. A violation of this provision attracts both disciplinary actions and a monetary fine.Reference Links:
  2. Rebates Prohibited; Penalties – Nursing Homes – § 400.176, Fla. Stat.
    – This section is similar to the above but includes an Anti-Kickback provision
    that applies specifically to nursing homes that are licensed to do business in
    Florida. A violation of this provision attracts both disciplinary actions and a
    monetary fine
  3. Bribes, Kickbacks, Certain Solicitations Prohibited – Nursing Homes – § 400.17, Fla. Stat. – This statute also applies to nursing homes. It prohibits bribery and kickbacks.
  4. Grounds for Disciplinary Action – Medical Practice – § 458.331(1)(i), Fla. Stat. – In addition to the payment of a fine as a penalty, as provided by some of the above-discussed statutes, healthcare facilities and professionals can also have their license denied or face other disciplinary actions under this section.
  5. Grounds for Disciplinary Action – Osteopathic Medicine – § 459.051(1)(j), Fla. Stat. – This section includes an Anti-Kickback Statute that applies specifically to licensed osteopathic physicians.
  6. Medicaid Provider Fraud (Kickback provision) – § 409.920(2)(a)(5), Fla. Stat. – This section of the Florida Statutes outlines the offenses that constitute Medicaid fraud in Florida. The payment and receipt of illegal bribes and kickbacks are considered one of such offenses.

Conclusion

As the penalties under the anti-kickback laws of Florida are severe, health care providers and practitioners should work with an experienced Florida healthcare lawyer to make sure they have legitimate relationships and are compliant with the laws and regulations guiding their practice.

At Imudia Law, our philosophy is ‘prevention is better than cure.’ Let us help you be compliant with the Florida Anti-Kickback Statutes by reviewing your current referral policy and drafting a revised plan as needed.

Reference Links:

[1][2] The Florida Legislature: Online Sunshine
[3] The Florida Legislature: Online Sunshine1.     

 

0