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On June 27, 2019, Florida Governor Ron DeSantis approved House Bill 369, which narrowed an exception to the Florida patient brokering statute and revised various statutory provisions relating to substance abuse services. 

The Florida patient brokering statute prohibits the offer, payment, solicitation or receipt of any payments or benefits to induce or reward referrals to or from a health care provider or facility.  This legislation amended the Florida patient brokering statute by narrowing an exception that previously protected payments that are not prohibited under the federal anti-kickback statute. The exception now applies only to payments and practices expressly authorized under the federal ant-kickback statute or related safe harbor regulations. These revisions took effect July 1, 2019.

Legislative analysis indicates that this amendment was intended to clarify that the patient brokering statute applies even if federal health care programs (such as Medicare or Medicaid) are not involved.  In light of recent Florida case law that interpreted the patient brokering statute to incorporate the federal anti-kickback statute (which is limited to federal health care programs), the prior wording of this exception was viewed as creating uncertainty on whether the patient brokering prohibition applied to referrals of patients who are covered under private insurance (and not federal health care programs) or are not covered by any benefit program.

It is important to keep in mind that an arrangement that fails to satisfy a statutory exception or regulatory safe harbor is not necessarily illegal under the federal anti-kickback statute. In fact, many arrangements that are not expressly protected under the federal anti-kickback statute can be structured to create minimal, if any, material risk of violating the federal anti-kickback statute. This amendment therefore substantially narrows the patient brokering exception and may subject some arrangements to increased exposure under the patient brokering prohibition.

Parties to arrangements that were structured or analyzed based on the previous wording of this anti-kickback exception may wish to review their arrangements in light of this amendment.  

For more information, please contact an attorney listed below.

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