This type of advisory opinion is expressly permitted under Florida law.Historical BackgroundFlorida has a broad statutory prohibition against patient brokering and splitting of fees in the health care context. The state’s PBA, codified under Florida Statute § 817.505, criminalizes any “offer or pay[ment of] any commission, bonus, rebate, kickback, or bribe … to induce the referral of patients or patronage to or from a health care provider or health care facility.” At first blush, the statue appears to track the federal Anti-Kickback Statute (albeit the state PBA applies to private payors, whereas the federal statute is limited solely to federal health care programs).Even the exemptions in the PBA seem consistent with the federal Anti-Kickback Statute.

However, it does address some of the issues peculiar to these transactions that the parties commonly have to manage. If the parties keep these issues in mind when contemplating the purchase and sale of a practice, the parties may be able to minimize some of the pitfalls that could derail the closing of their transaction, or a purchaser may be able to more quickly determine whether or not it is in the best interest of the purchaser to close on a particular transaction.1 See, 42 U.S.C.A § 1320a-7b; Fla Stat. § 817.505. 2 Id.

They shared summary outcomes of recent prosecutions, many of which have occurred in Florida, sometimes referred to as the “Relapse Riviera” given the density of treatment centers in the state. Florida’s anti-patient brokering statute (F.S.S. 817.505) has served as a model for similar laws in other states. The panelists highlighted the cooperation between federal and state law enforcement and human services agencies to successfully prosecute fraudsters and better ensure that people suffering from SUD receive the care they need.

A health care facility can be an ASC, hospital, substance abuse treatment center, inpatient hospice, or a nursing home.Substance Abuse ServicesCS/CS/SB 1120 –The Florida’s Patient Brokering Act (the PBA), Section 817.505, Florida Statutes, was revised in 2019 so that exception (3)(a) would only apply to arrangements that are “expressly authorized” by the anti-kickback law, rather than prohibited thereby. CS/CS/SB 1120, which became effective on July 1, 2020, returns the PBA to its pre-2019 language so that the PBA now applies to any discount, payment, waiver of payment, or payment practice not prohibited by the federal anti-kickback law or its regulations.

We recognized that many arrangements can be structured to meet a federal AKS exception and safe harbor; however, there are some arrangements, e.g., percentage arrangements for sales agents or hourly arrangements for medical directors, which do not. Such arrangements that otherwise meet a “facts and circumstances” analysis under the federal AKS should not be deemed illegal under the Florida PBA.We are happy to report that Florida passed CS/SB 1120, effective July 1, 2020, that changed the exception back to its original language at Florida Statutes section 817.505(3)(a), stating: “This section shall not apply to the following payment practices: (a) Any discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.”The Eliminating Kickbacks in Recovery Act of 2018 (EKRA) is still causing confusion as reported in that same February 2020 blog, but the fix to the Florida PBA is welcome.

Florida's health care industry is facing a growing quandary over how to structure arrangements in light of recent legislative and judicial events with the Florida Patient Brokering Act Fla. Stat. § 817.505 (PBA). As a practical matter, the PBA has historically been viewed as extending the federal Anti-Kickback Statute (AKS) beyond federal health care programs to all payors.

Respectfully, this is largely nonsense, and everyone needs to take a deep breath.Prior to the recent amendment, the PBA made it a felony to offer, pay, solicit or receive remuneration to induce the referral of, or in return for referring, a patient or patronage to or from a healthcare provider or healthcare facility. §817.505(1), Florida Statutes. After the amendment, the PBA prohibits ... the exact same thing.

Id. Because the Kigar court held that violation of the Patient Brokering Act is a general intent crime, the advice of counsel defense is not available to those accused of patient brokering in violation of Florida Statutes Section 817.505. This decision, which will likely become final, and for which appellate jurisdiction of the Supreme Court of Florida is unlikely under Fla. R. App. P. 9.

Historical BackgroundFlorida, like many other states, has a broad statutory prohibition against patient brokering and splitting of fees in the healthcare context. The state’s Patient Brokering Act, Florida Statute §817.505, criminalizes any “offer or pay[ment of] any commission, bonus, rebate, kickback, or bribe … to induce the referral of patients or patronage to or from a health care provider or health care facility.” At first blush, the statute appears to track the federal Anti-Kickback Statute and seems to limit nothing more than what is already proscribed at the federal level.Even the exemptions in the state statute seemingly track the federal Anti-Kickback Statute.

The Bill is intended to tackle the perceived, rampant fraud associated with substance abuse treatment in Florida by implementing certain requirements with respect to substance use disorder treatment providers, recovery residences, and lead generators/marketers. Nestled within the Bill is a “minor” revision to Section 817.505, Florida Statutes, known as the “Florida Patient Brokering Act,” (the “PBA”). The Summary Analysis of the Bill states that the intent of the revision is to “clarify” the application of the PBA to certain payment practices.