Page 119 - Akerman | 2016 Guide to Doing Business in Florida

If an arrangement in question does not violate the federal Anti-Kickback Statute, it is
not considered to violate the Florida Patient Brokering Act, and therefore would not be
considered a kickback or a violation of the self-referral prohibitions under Florida law
either. The provisions also do not apply to certain arrangements within group
practices, payments to healthcare providers or facilities for professional consultation
services. Lawful payments include payments by health insurers under health benefit
plans, payments to or by a healthcare provider facility or provider network entity for
goods and services under a plan, certain commissions or fees paid to a licensed
nurse registry, and payments by healthcare providers or facilities to health information
services to provide information upon request and at no cost to consumers about
providers in an area.

Violation of the Patient Brokering Act is a third degree felony, punishable by up to five
years imprisonment, a $5,000 fine per violation and habitual offenders it could be a ten
year term of imprisonment.

12.2.4 Fee Splitting Prohibitions
Florida’s fee splitting statute prohibits physicians from, among other things, engaging in
any split-fee arrangement with another person including other doctors for patients
referred to providers for healthcare goods or services. The fee splitting statute may be
found at Florida Statutes § 458.331(1)(i). Penalties include fines and possible medical
license revocation. It should be noted that the statute does not define “fee splitting.”
However, the Florida Board of Medicine has reviewed and interpreted the fee splitting
statute numerous times. There are dozens of Florida Board of Medicine declaratory
statements regarding the fee splitting statute. Additionally, there is ample case law in
Florida on the subject. Prior to providing counsel regarding the issue of fee splitting, a
more in-depth analysis of the declaratory statements from the Board of Medicine as
well as the case law, must be conducted.

12.2.5 Professional Licensure in Florida
The Florida Statutes outline the conditions for licensure for an array of healthcare
practitioners. Florida Statutes Chapter 456 sets forth general compliance statutes for
all healthcare practitioners in the state. Note that it is within Chapter 456 that the
Florida anti-referral prohibitions and the Florida anti-kickback statute are housed. There
are profession-specific provisions as well that cover acupuncturists (Chapter 457),
medical doctors (Chapter 458), Osteopaths (Chapter 459), Chiropractors (Chapter
460), Podiatrists (Chapter 461), Naturopaths (Chapter 462), Optometry (Chapter 463),
Nurses (Chapter 464), Pharmacists (Chapter 465), Dentists, Hygienists and Dental
Labs (Chapter 466), and Midwives (Chapter 467). There is also Chapter 468, a
catchall chapter covering speech and language pathologists, audiologists, nursing
home administration, occupational therapists, radiological personnel, respiratory
therapists, dieticians as well as, oddly, auctioneers, talent agents and community
associations. Each of these professions has a professional board that is part of the
Florida Department of Health, Division of Medical Quality Assurance. These boards
oversee and ensure compliance with the statutes and accompanying regulations
relevant to each profession.

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