Regulators are focusing on schemes and conspiracies that have the effect of driving up costs in the commercial healthcare industry. One interesting side note is that Texas has a statute, the Texas Patient Solicitation Act (Tex. Occ. Code §102.001 et seq.), which is worded similarly to the federal Anti-Kickback Statute, but includes all payors. However, historically, it has never been enforced on a state or federal level.

We are, for example, seeing third-party payers argue in pharmacy audits that technical violation of pharmacy practice standards are sufficient for them to avoid payment. Additionally, in litigation with out-of-network providers, third-party payers are attempting to avoid paying providers by arguing that: Physician ownership interests are kickbacks and violate state kickback and anti-solicitation laws (e.g., Texas Occupations Code § 102.001; § 102.006 and Fla. Stat. Ann. § 817.505). Waivers of patient responsibility amounts violate state law.

We are, for example, seeing third-party payers argue in pharmacy audits that technical violation of pharmacy practice standards are sufficient for them to avoid payment. Additionally, in litigation with out-of-network providers, third-party payers are attempting to avoid paying providers by arguing that:Physician ownership interests are kickbacks and violate state kickback and anti-solicitation laws (e.g., Texas Occupations Code § 102.001; § 102.006 and Fla. Stat. Ann. § 817.505).Waivers of patient responsibility amounts violate state law. For example, Fla. Stat. Ann. § 817.234(7) provides that it is “insurance fraud … for any service provider, other than a hospital, to engage in a general business practice of billing amounts as its usual and customary charge, if such provider has agreed with the insured or intends to waive deductibles or copayments, or does not for any other reason intend to collect the total amount of such charge.”