Dental Practices and Florida’s Patient Brokering Act

Florida’s Patient Brokering Act (the “PBA”), Florida Statutes §817.505, prohibits certain activities related to patient referrals and payments in healthcare settings, including dental practices. Understanding and complying with the PBA is essential for dental professionals to avoid legal penalties and protect their professional reputations. In this post, I’ll provide some of the contours for navigating Florida’s Patient Brokering Act in the context of dental practices.

Understanding the Patient Brokering Act

The PBA prohibits healthcare providers, including dental practitioners, from paying or receiving any form of remuneration in exchange for patient referrals. This means that some of the prohibited activities under the PBA include kickbacks, rebates, commissions, or any other form of compensation that may influence patient referrals or treatment decisions. There are civil, criminal, and negative licensure ramifications to violations of the PBA.

Compliance Requirements

Dental practitioners must ensure that their referral relationships with other healthcare providers, such as specialists or laboratories, comply with the PBA. Referrals should be based solely on the patient’s best interests and clinical needs, without any financial incentives or inducements.

Exceptions and Safe Harbors

The PBA includes certain exceptions and safe harbors that allow for legitimate business arrangements and payments in healthcare settings. Dentists should familiarize themselves with these exceptions and ensure that any financial relationships with other providers fall within the scope of permissible arrangements. Some of the key exceptions to the PBA include:

1. Payments by Health Insurers: Payments made by a health insurer who provides a health benefit plan under contract with the Agency for Health Care Administration, so long as the payment is not made in violation of state or federal law.
2. Bona Fide Employees: Payments to bona fide employees or independent contractors if the payment is not determined by or does not vary by the number of individuals referred to a particular recovery residence, the number of tests or procedures performed, or the amount billed to or received from third parties.
3. Discounted Health Services: Certain discount, rebate, commission, or other reduction in price provided to certain health care providers if the reduction in price is properly disclosed and reflects a reduction in the cost of providing services.
4. Risk-Sharing Arrangements: Payments for risk-sharing arrangements, including capitated and fee-for-service payments, between health insurers, health care providers, and provider service networks as long as such arrangements comply with federal laws.
5. Employee Referral Programs: Employee referral programs with established written terms for determining the amount of the payment, criteria under which employees participating in the program are eligible to receive payment, and other lawful parameters as per the Federal Anti-Kickback Statute.
6. Co-Payment Waiver: A waiver of copayments or deductible amounts by a healthcare provider or facility, provided the waiver does not routinely occur and complies with the Federal Anti-Kickback Statute and other federal guidelines related to fraud and abuse.
7. Nonprofit Agencies: Referrals of patients to or from a nonprofit agency that provides bona fide services to prevent, eliminate, reduce or control substance abuse and permits certain patient brokering activities between nonprofit agencies and other healthcare providers.
8. Managed Care Organizations: Payments between managed care organizations, as defined in statute, and their contracted Health Care Providers as past of the service delivery under managed care.
9. Lawful Contractual Affiliations: Payments made under lawful contractual affiliations between healthcare providers and referral services.
10. Safe Harbors: Conduct that complies with the Safe Harbor regulations, as established by the Federal Anti-Kickback Statute, if no federal or state laws are violated.

Federal Anti-Kickback Statute

In addition to the PBA, dental practitioners must also comply with the federal Anti-Kickback Statute (the “AKS”), which prohibits the exchange of remuneration for referrals in federal healthcare programs. Compliance with both state and federal laws is essential to avoid legal liability and penalties. Compliance with the AKS can be done through meeting one of its “safe harbors.” Some of the well-established safe harbor provisions include:

1. Investment Interests: Investments in large publicly traded securities and in small entities that meet the requirements specified in the statute.
2. Space Rental: Lease agreements that meet certain criteria, such as being in writing, having a term of at least one year, and the lease payments being set in advance and consistent with fair market value.
3. Equipment Rental: Similar criteria as space rental but pertaining to the leasing of equipment.
4. Personal Services and Management Contracts: Payments to agents that have a written agreement for at least one year, represent fair market value compensation, and the agreement covers all services the agent provides.
5. Sale of Practice: Selling a practice provided the sale is for fair market value and the terms of the deal fit within the statute’s stipulated parameters.
6. Referral Services: Payments to a referral service that do not vary based on the volume or value of referrals.
7. Group Purchasing Organizations (“GPOs”): Payments made by vendors to GPOs that represent healthcare providers and the administrative fees paid by vendors to GPOs.
8. Waiver of Beneficiary Coinsurance and Deductible Amounts: If certain criteria are met, providers may waive Medicare or Medicaid beneficiary coinsurance or deductible amounts.
9. Discounts: A reduction in the price of an item or service based on an agreement not to bill for all or part of the item or service.
10. Employee Compensation: Payments made to bona fide employees as compensation for services and not for referrals.
11. Physician Recruitment: Payments made to recruit a physician to join a medical practice in a certain area, under specific conditions.
12. Obstetrical Malpractice Insurance Subsidies: Hospitals may offer subsidies for obstetrical malpractice insurance to an obstetrician or group of obstetricians providing obstetrical care to a certain population.

These are just a few examples of the safe harbor provisions. There are other safe harbors and the contours of each of them is very specific to a set of facts and circumstances. You should always consult with an attorney about your case.

Compliance Programs and Training

You should implement compliance programs within your dental practice to educate employees and practitioners about the requirements of the PBA and AKS. As a part of this process, you should provide regular training on compliance with anti-kickback laws and the importance of ethical patient referrals.

Consultation with Legal Counsel

Seek guidance from attorneys knowledgeable about healthcare law to ensure that your dental practice’s referral relationships and compensation arrangements comply with the PBA and other relevant laws. An attorney can review your practice’s policies and procedures, provide guidance on compliance issues, and represent your interests in any legal proceedings or investigations related to patient brokering allegations.

Ongoing Monitoring and Compliance Audits

It would be a good idea to conduct regular monitoring and audits of your dental practice’s referral relationships and financial arrangements to identify and address any potential compliance issues. You should promptly address any concerns or allegations of patient brokering through internal investigations and corrective action plans. Always take a proactive approach.

To conclude, compliance with Florida’s Patient Brokering Act is essential for dental practitioners to maintain ethical standards and legal integrity in patient referrals and financial arrangements. By understanding the requirements of the PBA, implementing compliance measures, and seeking legal guidance when necessary, dental practices and other healthcare providers can mitigate legal risks and uphold their commitment to patient care and ethical conduct.