As previously reported in our August 16, 2019 and February 18, 2020 blogs, the Florida Patient Brokering Act (Florida PBA) was amended on July 1, 2019 to change the exception to the Florida PBA from conduct “not prohibited by” the Federal anti-kickback statute (AKS; 42 U.S.C. § 1320a-7b(b)) or related regulatory safe harbors (42 C.F.R. § 1001.952) to conduct “expressly authorized by” the Federal AKS or related regulatory safe harbors.

As such, the new exemption language appeared to require that payment arrangements meet the federal AKS exceptions or related regulatory safe harbors. That change was significant because the U.S. Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) has stated that failure to meet a federal AKS safe harbor does not render a payment arrangement per se illegal and that determination as to whether the arrangement poses a risk of fraud and abuse using a totality of the “facts and circumstances” analysis is key. With the revised Florida PBA exception language, it was unclear whether the critical “facts and circumstances” analysis or even OIG guidance, upon which health care providers in Florida have historically heavily relied, was dependable in protecting arrangements in Florida.

In our prior February 2020 blog, we noted the need for a thoughtful rewrite of the Florida PBA that could involve the addition of language that states that, irrespective of the type of health care benefit program, conduct and/or payment arrangements that comply with an exception under, or otherwise do not violate, the federal AKS will not be an offense. We recognized that many arrangements can be structured to meet a federal AKS exception and safe harbor; however, there are some arrangements, e.g., percentage arrangements for sales agents or hourly arrangements for medical directors, which do not. Such arrangements that otherwise meet a “facts and circumstances” analysis under the federal AKS should not be deemed illegal under the Florida PBA.

We are happy to report that Florida passed CS/SB 1120, effective July 1, 2020, that changed the exception back to its original language at Florida Statutes section 817.505(3)(a), stating: “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.”

The Eliminating Kickbacks in Recovery Act of 2018 (EKRA) is still causing confusion as reported in that same February 2020 blog, but the fix to the Florida PBA is welcome.