Florida Senate - 2016                                     SB 108
       
       
        
       By Senator Grimsley
       
       
       
       
       
       21-00131-16                                            2016108__
    1                        A bill to be entitled                      
    2         An act relating to financial arrangements between
    3         referring health care providers and providers of
    4         health care services; amending s. 456.053, F.S.;
    5         providing an exception to the prohibition against the
    6         referral by a health care provider of a patient for
    7         the provision of designated health services to an
    8         entity in which the provider has an investment
    9         interest; increasing the threshold of a qualifying
   10         corporation’s asset valuation; providing an effective
   11         date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Subsection (5) of section 456.053, Florida
   16  Statutes, is amended to read:
   17         456.053 Financial arrangements between referring health
   18  care providers and providers of health care services.—
   19         (5) PROHIBITED REFERRALS AND CLAIMS FOR PAYMENT.—Except as
   20  provided in this section:
   21         (a) A health care provider may not refer a patient for the
   22  provision of designated health services to an entity in which
   23  the health care provider is an investor or has an investment
   24  interest unless the provider’s investment interest is in
   25  registered securities purchased on a national exchange or over
   26  the-counter market and issued by a publicly held corporation:
   27         1. Whose shares are traded on a national exchange or over
   28  the-counter market;
   29         2. Whose total assets at the end of the corporation’s most
   30  recent fiscal quarter exceeded $75 million; and
   31         3. Which does not loan funds or guarantee a loan to a
   32  health care provider who is in a position to make referrals to
   33  the corporation if the provider uses any part of such loan to
   34  obtain the investment interest.
   35  
   36  This paragraph may not be deemed to otherwise serve as a safe
   37  harbor or contravene any other provision of state law
   38  prohibiting or regulating referrals, kickbacks, rebates, or
   39  patient brokering. A health care provider’s investment interests
   40  in registered securities of publicly held corporations must be
   41  purchased on a national exchange or over-the-counter market
   42  under normal terms and conditions without discount, incentive,
   43  gifts, or future options.
   44         (b) A health care provider may not refer a patient for the
   45  provision of any other health care item or service to an entity
   46  in which the health care provider is an investor unless:
   47         1. The provider’s investment interest is in registered
   48  securities purchased on a national exchange or over-the-counter
   49  market and issued by a publicly held corporation:
   50         a. Whose shares are traded on a national exchange or on the
   51  over-the-counter market; and
   52         b. Whose total assets at the end of the corporation’s most
   53  recent fiscal quarter exceeded $75 million $50 million; or
   54         2. With respect to an entity other than a publicly held
   55  corporation described in subparagraph 1., and a referring
   56  provider’s investment interest in such entity, each of the
   57  following requirements are met:
   58         a. No more than 50 percent of the value of the investment
   59  interests are held by investors who are in a position to make
   60  referrals to the entity.
   61         b. The terms under which an investment interest is offered
   62  to an investor who is in a position to make referrals to the
   63  entity are no different from the terms offered to investors who
   64  are not in a position to make such referrals.
   65         c. The terms under which an investment interest is offered
   66  to an investor who is in a position to make referrals to the
   67  entity are not related to the previous or expected volume of
   68  referrals from that investor to the entity.
   69         d. There is no requirement that an investor make referrals
   70  or be in a position to make referrals to the entity as a
   71  condition for becoming or remaining an investor.
   72         3. With respect to either such entity or publicly held
   73  corporation:
   74         a. The entity or corporation does not loan funds to or
   75  guarantee a loan for an investor who is in a position to make
   76  referrals to the entity or corporation if the investor uses any
   77  part of such loan to obtain the investment interest.
   78         b. The amount distributed to an investor representing a
   79  return on the investment interest is directly proportional to
   80  the amount of the capital investment, including the fair market
   81  value of any preoperational services rendered, invested in the
   82  entity or corporation by that investor.
   83         (c)4. Each board and, in the case of hospitals, the Agency
   84  for Health Care Administration, shall encourage the use by
   85  licensees of the declaratory statement procedure to determine
   86  the applicability of this section or any rule adopted pursuant
   87  to this section as it applies solely to the licensee. Boards
   88  shall submit to the Agency for Health Care Administration the
   89  name of any entity in which a provider investment interest has
   90  been approved pursuant to this section.
   91         (d)(c)A claim for payment may not No claim for payment may
   92  be presented by an entity to any individual, third-party payor,
   93  or other entity for a service furnished pursuant to a referral
   94  prohibited under this section.
   95         (e)(d) If an entity collects any amount that was billed in
   96  violation of this section, the entity shall refund such amount
   97  on a timely basis to the payor or individual, whichever is
   98  applicable.
   99         (f)(e) Any person who that presents or causes to be
  100  presented a bill or a claim for service that such person knows
  101  or should know is for a service for which payment may not be
  102  made under paragraph (d) (c), or for which a refund has not been
  103  made under paragraph (e) (d), shall be subject to a civil
  104  penalty of not more than $15,000 for each such service to be
  105  imposed and collected by the appropriate board.
  106         (g)(f) Any health care provider or other entity that enters
  107  into an arrangement or scheme, such as a cross-referral
  108  arrangement, which the physician or entity knows or should know
  109  has a principal purpose of assuring referrals by the physician
  110  to a particular entity which, if the physician directly made
  111  referrals to such entity, would be in violation of this section,
  112  shall be subject to a civil penalty of not more than $100,000
  113  for each such circumvention arrangement or scheme to be imposed
  114  and collected by the appropriate board.
  115         (h)(g) A violation of this section by a health care
  116  provider shall constitute grounds for disciplinary action to be
  117  taken by the applicable board pursuant to s. 458.331(2), s.
  118  459.015(2), s. 460.413(2), s. 461.013(2), s. 463.016(2), or s.
  119  466.028(2). Any hospital licensed under chapter 395 found in
  120  violation of this section shall be subject to s. 395.0185(2).
  121         (i)(h)A Any hospital licensed under chapter 395 may not
  122  discriminate that discriminates against or otherwise penalize
  123  penalizes a health care provider for compliance with this
  124  subsection act.
  125         (j)(i) The provision of paragraph (a) does shall not apply
  126  to referrals to the offices of radiation therapy centers managed
  127  by an entity or subsidiary or general partner thereof, which
  128  performed radiation therapy services at those same offices prior
  129  to April 1, 1991, and does shall not apply also to referrals for
  130  radiation therapy to be performed at no more than one additional
  131  office of any entity qualifying for the foregoing exception
  132  which, prior to February 1, 1992, had a binding purchase
  133  contract on and a nonrefundable deposit paid for a linear
  134  accelerator to be used at the additional office. The physical
  135  site of the radiation treatment centers affected by this
  136  provision may be relocated as a result of the following factors:
  137  acts of God; fire; strike; accident; war; eminent domain actions
  138  by any governmental body; or refusal by the lessor to renew a
  139  lease. A relocation for the foregoing reasons is limited to
  140  relocation of an existing facility to a replacement location
  141  within the county of the existing facility upon written
  142  notification to the Office of Licensure and Certification.
  143         (k)(j) A health care provider who has an investment
  144  interest in an entity to which he or she refers one or more
  145  patients for the provision of designated health services in
  146  compliance with meets the requirements of paragraph paragraphs
  147  (a), paragraph (b), or paragraph (j) and (i) must disclose his
  148  or her investment interest to his or her patients as provided in
  149  s. 456.052.
  150         Section 2. This act shall take effect July 1, 2016.