Has your attorney ever told you to do your best to comply with certain safe harbors to the Federal Anti-Kickback Statute, and you’ll be likely to survive scrutiny under the Florida Patient Brokering Act (the PBA)? If you’ve heard that, it’s time to re-examine that relationship. In the last month, the Patient Brokering Act has been amended, and then interpreted by a court of law in a way that affects all healthcare providers.
The Patient Brokering Act has been used in recent years to prosecute abuses in the addiction treatment industry. Other healthcare providers subject to the act have largely been uninvolved in these prosecutions. However, the PBA has been remolded 4 times in the past 5 years as a means to tailor it to allow for prosecutions of bad actors in healthcare, including addiction treatment. One item should be made clear: the PBA applies to any facility at all that is licensed by the Agency for Healthcare Administration (AHCA) or practitioner licensed by the Department of Health (DOH), including physicians, surgery centers, home health agencies, skilled nursing facilities, hospitals, DME providers, diagnostic imaging facilities, clinical laboratories, pharmacies and many other. During the legislative process, barely any healthcare industry representatives (from any provider group) showed up to any legislative workshops or produced counterbalancing input or language proposals that reflected a broader perspective.
In its most recent amendment, the PBA’s language transitioned from excepting out any practice not prohibited by the Federal Anti-Kickback Statute and its safe harbors (i.e., allowing conduct which complied with federal safe harbors) to excepting out practices expressly authorized by the Federal Anti-Kickback Statute and its safe harbors. Importantly, however, the federal Anti-Kickback Statute does not expressly authorize any practices or arrangements—it provides illustrative examples of conduct that the Federal Government would not prosecute. This seemingly small change brings about a huge amount of uncertainty as to what practices are allowed and what practices will be held criminal.
In addition to the most recent change in the PBA, over the past year, the Palm Beach County Sober Home Task Force has asked the trial courts, and now the appellate courts, if a person charged with violating the PBA can be found guilty even if he/she didn’t know what he was doing was unlawful. Just last week, the Fourth District Court of Appeals here in Florida agreed, holding that prosecutors in a PBA case are not required to prove the defendant had a specific improper intent to violate the PBA.
Moreover, the appeals court considered whether a healthcare facility or provider can be found guilty of violating a criminal law [the PBA] if he/she had sought legal advice and followed it? (Traditionally, the answer has been “no.”) The Court’s holding included that any efforts by a defendant who sought and followed the advice of counsel should be excluded from evidence and unavailable as a defense. Because a specific showing of intent is no longer required to prove a violation of the PBA, the floodgates to PBA prosecution are open (even for those who got legal advice and followed it).
We urge all healthcare providers in the State of Florida to seek advice about permissible marketing or compensation arrangements that are clearly lawful under federal law, and whether these relationships may be subject to criminal prosecution under state Patient Brokering Act. Failing to understand your newfound obligations could have disastrous results.
