Page 118 - Akerman | 2016 Guide to Doing Business in Florida

laboratory services; and healthcare providers whose principle professional practice
consist of treating patients in their private residences, except home health.

The statute also imposes additional requirements on group practices or sole providers
who accept outside referrals for diagnostic imaging: no more than fifteen percent
(15%) of patients referred may be from outside referrals for such an arrangement to not
violate the statute. There are also limitations providing employees for services,
management contracts, appropriate billing (professional/technical component) and
attestation requirements regarding documentation. The provider violating the act is
subject to a civil penalty of not more than $15,000 for each service where there is a
violation. Circumvention arrangements are subject to a civil penalty of not more than
$100,000. These violations are also the grounds for disciplinary action by the state
licensing boards. These penalties are similar to the penalties which can be imposed
under the Federal Stark Act.

12.2.2 State Anti-Kickback Statute
The state Anti-Kickback Statute may be found at Florida Statutes § 456.054. It is
unlawful under the act for any healthcare provider or provider of services to offer, pay,
solicit, or receive a kickback directly or indirectly overtly or covertly in cash or in kind for
referring or soliciting patients. A kickback, like the Federal Anti-Kickback Statute,
means remuneration or payment by or on behalf of a provider of services or items to
any person as an incentive or an inducement to refer patients for past or future
services or items when the payment is not tax deductible as an ordinary and
necessary expense. Violations are considered patient brokering and are punishable
under Florida Patient’s Brokering Act, discussed below. Several individual practice
acts in Florida include provisions similar to this as grounds for discipline including the
Medical Practice Act at 458.331, the Osteopathic Medicine Act at 459.015,
Naturopathy Act at 462.14, Occupational Therapy at 468.217 and the Respiratory
Therapy Act at 468.365.

12.2.3 Florida Patient Brokering Act

As referenced in the section discussing the Florida Anti-Kickback Statute above, it is
unlawful for any person including a healthcare provider or healthcare facility to offer,
pay, solicit or receive any commission, bonus, rebate, kickback or bribe, directly or
indirectly, in cash or in kind, or engage in any split fee arrangement in any form
whatsoever to induce or in return for referral of patients or patronage to or from a
healthcare provider or healthcare facility. This is referred to as the Florida Patient
Brokering Act and may be found at Florida Statutes § 817.505. It is also unlawful to
solicit or to receive remuneration in return for acceptance or acknowledgement of
treatment from a healthcare provider or a facility or to aid, abet or advise or otherwise
participate in any of the above conduct. The act broadly defines the term healthcare
provider or facility to include any person or entity required to be licensed, certified or
registered or lawfully exempt from being required to be licensed, certified or registered
with the agency for healthcare administration or the Florida Department of Health. In
2012, the act was amended to exempt certain marketing, consultation, and referral
activities of assisted living facilities, as referenced in Florida Statutes § 429.195(2).
The key to the Patient Brokering Act and the Florida Self-Referral and Florida Anti-
Kickback Statute is the following:

116