A kickback is the practice whereby a person or business pays someone to find new clients or referrals and/or pays that person a percentage of the increased transactions resulting from those referrals. The objective of Florida’s anti-kickback statutes is to prohibit illegal “patient referrals between health care providers and entities providing health care services” for financial reason (i.e. kick-back). Anti-Kickback laws apply to all Florida healthcare service providers including, but not limited to, physicians, dentists, pharmacists (and pharmacies), and nursing homes, and hospitals. Florida’s stark law address situations in which the healthcare provider has a business interest in the facility to which he/she makes referrals.
Below are nine Florida anti-kickback statutes with a brief description of each. You should contact an attorney for detailed information about compliance with Florida’s anti-kickback statues.
It is unlawful for any healthcare provider to receive a kickback for referring or soliciting patients. Kickbacks are remuneration of a provider of healthcare services or items, to any person as an incentive or inducement to refer patients for past or future services or items, when the payment is not tax deductible as an ordinary and necessary expense.
Is a criminal statute that provides that it is crime for any person, including health care providers and facilities, to offer or receive kickbacks, bonuses, commission or rebates, or engage in any split-fee arrangement, in return for referral of patients or patronage to or from a healthcare provider/facility. Violations of the Florida Patient Brokering Act is a third degree felony, punishable by up to five years in prison.
Caution: The Patient Brokering statute includes many important exceptions (i.e. safe harbors), including arrangements such as those not prohibited by the federal anti-kickback statute; those within certain group practices; those within some contracted health benefit plans, and several other exceptions.
It is unlawful for any person to pay or receive any commission, bonus, kickback, or rebate, or engaged in any split-fee arrangement, in any form whatsoever with any physician, surgeon, organization, or person, either directly or indirectly, for patients referred to a hospital, ambulatory surgical center or mobile surgical facility.
It is unlawful for any person to pay or receive any commission, bonus, kickback or rebate or engage in any split-fee arrangement in any form whatsoever with any physician, surgeon, organization, agency or person, either directly or indirectly, for patients referred to a registered pharmacy.
It is unlawful for any person who furnishes items or services directly or indirectly to a nursing home resident to solicit, offer or receive any kickback or bribe in connection with the furnishing of such items or services, or making or receipt of such payment, or return of part of an amount given in payment for referring any such individual to another person for the furnishing of such item or services.
It is unlawful for any person to pay or receive any commission, bonus, kickback or rebate or engage in any split-fee arrangement in any form whatsoever with any physician, surgeon, organization, agency or person either directly indirectly, for residents referred to a nursing home.
It is grounds for denial of license or disciplinary action to pay or receive any commission, bonus, kickback or rebate, or engage in any split-fee arrangement in any form whatsoever with a physician, organization, agency or person, directly or indirectly, for patients referred to providers of health care goods and services including, but not limited, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or pharmacies.
It is grounds for denial of license or a disciplinary action for any kickback or to engage in any split-fee arrangement with a physician, or other business entity, for patients referred to providers of healthcare goods and services.
A person may not knowingly receive any kickback in return for referring an individual to a person for the furnishing of any item or service for which payment under the Medicaid program.
Anti-kickback statues regularly affect the daily practices of Florida’s healthcare professionals. The business of healthcare generates frequent referrals back-and-forth between providers and hospitals, and sometimes these relationships provide unlawful financial incentives. All healthcare practitioners should understand if their inbound and outbound referral patterns are making them susceptible to liability under the Florida anti-kickback statute, because the penalties for non-compliance are severe. For example, violations of the Patient Brokering law are third-degree felonies, punishable by up to five years (ten years for habitual offenders) imprisonment, and a $5,000 fine.
Kickbacks take many different forms, some obvious, like providers who accept cash in exchange for referrals. Others are more subtle, such as a hospital giving providers reduced office rent in exchange for the informal agreement to refer patients to the hospital. It is surprisingly easy to unintentionally run afoul of Florida’s anti-kickback laws.
However, even unintentional violations are prosecuted because the statutes do not require willful or knowing conduct. You are invited to contact the Chapman Law Group if you have questions concerning how to comply with, and how to handle the consequences of, violating these anti-kickback laws.
Healthcare practitioners must have a working understanding of the anti-kickback laws, including the types of activities that receive exemptions or “safe harbors.” Safe harbor refers to activities viewed as acceptable practices and depends on the circumstances of the case. A knowledgeable health care attorney can discuss your practices with you and help you determine if and how you can meet safe harbor provisions. Chapman Law Group can speak with you about safe harbors and any other concerns you have about the Florida anti-kickback laws.
Given the severe penalties under Florida’s anti-kickback laws, healthcare professionals and providers should contact a Florida healthcare lawyer, like Chapman Law Group, to ensure that their referral relationships are legitimate and do not lead to exposure under the law.
1. “State Anti-Kickback Statutes: Where the Action is.” Health Law & Policy Brief 2, no. 2 (2013): 22-27.
2. Health Law Section, The Florida Bar Ad Hoc Legislation Committee, Final Report, page 2.
3. SUMMARY OF FRAUD AND ABUSE STATUTES & REGULATIONS FLORIDA, American Health Lawyers Association, Fraud and Abuse Practice Group