Following the recent changes to the state PBA (Patient Brokering Act), many health care providers in Florida don’t know if formerly widespread practices are legal. Various authorities claim that the change in the legislature, meant to act as a step in healthcare fraud defense, invalidates some long-standing arrangements between healthcare providers and patient referral sources.
Violation of the Florida Patient Brokering Act is a serious felony that can result, upon conviction, in penalties ranging from $50,000 to $500,000.
The state government introduced the PBA amendment to ensure equal treatment of federal health care program beneficiaries versus patients using private insurance. According to the Bill Analysis, the old language of the act did not make it clear whether Florida’s PBA would be valid for those holding private insurance. The amended health law sought to eliminate this potential inequality, ensuring that the law applies to all patients regardless of what type of insurance coverage they have.
Unfortunately, the new language of the state PBA has created some confusion as to whether previously commonplace practices are acceptable and do not violate the Federal Anti-Kickback Statute (AKS).
Changes to Brokering Act
Before the change, it was illegal to pay, solicit, or receive remuneration for referring a patient to or from a healthcare facility or healthcare provider, except for “any discount, payment, waiver of payment or payment practice not prohibited by the federal anti-kickback statute.” Following the change, it is not enough that the practice is not prohibited; it must, instead, be expressly authorized by the Federal AKS.
The change in the legislature was intended to ensure equality between patients of federal health care programs and those using private insurance, stating that the PBA only applies to AKS exceptions and safe harbors. Inadvertently, the recent amendment resulted in previously acceptable and commonplace practices suddenly at risk of becoming illegal.
Implications for Health Care Providers
As a criminal statute, the AKS does not expressly authorize anything. Rather, it implies that if a practice is not a criminal offense, it is not prohibited. It is not always clear whether an arrangement between a health care provider and a referrer must be included in the definition of safe harbor protection to be legal under Florida statutes. Any healthcare attorney can tell that many arrangements, while not illegal in themselves, are not considered safe harbors.
If a safe harbor is not present, federal authorities must look into the general intent of each individual arrangement and check whether it includes inducing or offering monetary compensation for patient referrals. In fact, according to the decision of the Florida Fourth District Court of Appeal, the mere intent of engaging in practices prohibited under the updated Florida patient brokering act is enough to break the law.
Advice of Counsel Defense
Under Florida law, advice of counsel does not serve to defend against the supposed violation of the updated patient brokering act. Does this mean that providers can no longer rely on the counsel of a healthcare fraud lawyer to protect themselves against a possible lawsuit? It depends on who you ask, but either way, this had been the case even before the patient brokering act had been amended.
However, even if the advice of counsel defense cannot serve as legal protection at Florida courts, this does not mean that the services of healthcare attorneys are useless. Quite the contrary, the changes in the patient brokering act make it more important than ever to seek qualified and experienced legal advice.
Call to Amendment in Patient Brokering Act
It seems that further modification to the PBA could help ensure that law-abiding health care providers do not find themselves wondering whether they are inadvertently engaged in illegal practices. The language of Florida’s patient brokering act must be clear enough to protect care providers acting in good faith and wishing to obey the law.
Health care professionals can act through their trade associations, legislators, and Boards to push for reversing the updates in the language of the Act. Revisions should seek to bring it back in line with the Federal AKS while ensuring that the state law exception includes those with private health insurance as well as those with health care coverage provided by the Federal government.
If you are a healthcare provider in South Florida, we know how difficult it can be to treat your patients in accordance with your training, experience, and desire to give them the best possible care, while remaining in compliance with the law. Are you facing potential legal action pertaining to the Florida State-Patient Brokering Act?
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Contact our experts at Tache Bronis at 305-570-3250 (rights reserved) for a free, no-obligation consultation. We will analyze your case and apply our years of experience to represent you well in the Miami courts.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
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