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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Recent Legislative Change Fixes Florida Patient Brokering Act

By Amanda I. Forbes, J.D.

A new act (SB 1120) was recently passed by the Florida Senate and enacted on June 18, 2020, with an effective date of July 1, 2020.  SB1120 restored the Florida Patient Brokering Act to its original wording to correct a big glitch made when the Legislature previously amended it.  On June 27, 2019, there was an amendment enacted by the Florida Legislature that changed the Florida Patient Brokering Act, Section 817.505, Florida Statutes.  It became effective on July 1, 2019.  The amendment changed Section 817.505(3)(a), Florida Statutes.

The original wording of the statute stated:

(3) 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.”

Section 817.503(3)(a).  (Emphasis added).

The new amendment to the Florida Patient Brokering Act stated:

(3) This section shall not apply to the following payment practices:

(a) Any discount, payment, waiver of
payment, or payment practice expressly
authorized by” 42 U.S.C. s. 1320a-7b(b)(3) or
regulations adopted thereunder.”

Section 817.505(3)(a).  (Emphasis added)

This Federal law exemption had previously been relied on to avoid the Florida statute’s criminal prohibitions, particularly, by health law attorneys advising their clients on proposed business ventures.  The most immediate problem with the amendment was that there are no “discounts, payments waivers of payment, or payment practices” that are “specifically approved” by the federal statute.

Rather than provide clarification, the amendment only created confusion.  The Federal anti-kickback statue (42 U.S.C. Section 1320a-7b(b)) does not “expressly authorize” any exception or safe harbor.  The amended language caused confusion regarding whether an arrangement must qualify for safe harbor protection under the Federal anti-kickback statute in order to be legal under Florida law.  Therefore, the amendment went from a state law that was similar to and cohesive with the federal statute, to one which was much stricter that the federal law and prohibited many current business arrangements.

When there is no safe harbor, the arrangement is evaluated by its intent.  The Florida Fourth District Court of Appeal recently confirmed that the Patient Brokering Act is a “general intent” statute. This means that an individual only needs to intend to commit the act prohibited by the statute (e.g. paying for referrals), as opposed to intending to specifically violate the Patient Brokering Act.  See State v. Kigar, 279 So. 3d 217 (Fla. 4th DCA 2019)

The bill (SB1120) was passed by the Florida Senate and enacted on June 19, 2020, with an effective date of July 1, 2020.  SB1120 restored the Florida Patient Brokering Act to its original wording.

To view the bill in full, click here.

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About the Author: Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area.  The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

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By George F. Indest III, J.D., M.P.A., LL.M.

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