Florida Senate - 2017                                     SB 788
       
       
        
       By Senator Clemens
       
       31-00305A-17                                           2017788__
    1                        A bill to be entitled                      
    2         An act relating to marketing practices for substance
    3         abuse services; amending s. 16.56, F.S.; authorizing
    4         the Office of Statewide Prosecution in the Department
    5         of Legal Affairs to investigate and prosecute patient
    6         brokering offenses; amending s. 397.407, F.S.;
    7         revising the requirements for the referral of patients
    8         to, and the acceptance of referrals from, a recovery
    9         residence; specifying that certain referrals are not
   10         prohibited; providing applicability; clarifying that
   11         such referrals are not required; amending s. 397.501,
   12         F.S.; providing that an application for the disclosure
   13         of an individual’s records may be filed as part of an
   14         active criminal investigation; authorizing a court to
   15         approve an application for the disclosure of an
   16         individual’s substance abuse treatment records without
   17         providing express notice of the application to the
   18         individual or identified parties with an interest in
   19         the records if the application is filed as part of an
   20         active criminal investigation; providing that upon
   21         implementation of the order granting such application,
   22         the individual and identified parties with an interest
   23         in the records must be afforded an opportunity to seek
   24         revocation or amendment of that order; creating s.
   25         397.55, F.S.; providing legislative findings;
   26         prohibiting service providers, operators of recovery
   27         residences, and certain third parties from engaging in
   28         specified marketing practices; requiring a person or
   29         entity to obtain a license from the Department of
   30         Business and Professional Regulation before attempting
   31         to generate referrals or leads for the placement of
   32         patients with a service provider or in a recovery
   33         residence; requiring such person or entity to maintain
   34         an office in the state as a condition of the license;
   35         providing penalties; creating s. 817.0345, F.S.;
   36         prohibiting a person from knowingly and willfully
   37         making specified false or misleading statements or
   38         providing specified false or misleading information
   39         under certain circumstances; providing penalties;
   40         amending s. 817.505, F.S.; providing that it is
   41         unlawful for a person to offer or pay, or solicit or
   42         receive, benefits under certain circumstances;
   43         providing fines and penalties; amending s. 895.02,
   44         F.S.; revising the definition of the term
   45         “racketeering activity”; providing an effective date.
   46          
   47  Be It Enacted by the Legislature of the State of Florida:
   48  
   49         Section 1. Paragraph (a) of subsection (1) of section
   50  16.56, Florida Statutes, is amended to read:
   51         16.56 Office of Statewide Prosecution.—
   52         (1) There is created in the Department of Legal Affairs an
   53  Office of Statewide Prosecution. The office shall be a separate
   54  “budget entity” as that term is defined in chapter 216. The
   55  office may:
   56         (a) Investigate and prosecute the offenses of:
   57         1. Bribery, burglary, criminal usury, extortion, gambling,
   58  kidnapping, larceny, murder, prostitution, perjury, robbery,
   59  carjacking, and home-invasion robbery, and patient brokering;
   60         2. Any crime involving narcotic or other dangerous drugs;
   61         3. Any violation of the Florida RICO (Racketeer Influenced
   62  and Corrupt Organization) Act, including any offense listed in
   63  the definition of racketeering activity in s. 895.02(8)(a),
   64  providing such listed offense is investigated in connection with
   65  a violation of s. 895.03 and is charged in a separate count of
   66  an information or indictment containing a count charging a
   67  violation of s. 895.03, the prosecution of which listed offense
   68  may continue independently if the prosecution of the violation
   69  of s. 895.03 is terminated for any reason;
   70         4. Any violation of the Florida Anti-Fencing Act;
   71         5. Any violation of the Florida Antitrust Act of 1980, as
   72  amended;
   73         6. Any crime involving, or resulting in, fraud or deceit
   74  upon any person;
   75         7. Any violation of s. 847.0135, relating to computer
   76  pornography and child exploitation prevention, or any offense
   77  related to a violation of s. 847.0135 or any violation of
   78  chapter 827 where the crime is facilitated by or connected to
   79  the use of the Internet or any device capable of electronic data
   80  storage or transmission;
   81         8. Any violation of chapter 815;
   82         9. Any criminal violation of part I of chapter 499;
   83         10. Any violation of the Florida Motor Fuel Tax Relief Act
   84  of 2004;
   85         11. Any criminal violation of s. 409.920 or s. 409.9201;
   86         12. Any crime involving voter registration, voting, or
   87  candidate or issue petition activities;
   88         13. Any criminal violation of the Florida Money Laundering
   89  Act;
   90         14. Any criminal violation of the Florida Securities and
   91  Investor Protection Act; or
   92         15. Any violation of chapter 787, as well as any and all
   93  offenses related to a violation of chapter 787;
   94  
   95  or any attempt, solicitation, or conspiracy to commit any of the
   96  crimes specifically enumerated above. The office shall have such
   97  power only when any such offense is occurring, or has occurred,
   98  in two or more judicial circuits as part of a related
   99  transaction, or when any such offense is connected with an
  100  organized criminal conspiracy affecting two or more judicial
  101  circuits. Informations or indictments charging such offenses
  102  shall contain general allegations stating the judicial circuits
  103  and counties in which crimes are alleged to have occurred or the
  104  judicial circuits and counties in which crimes affecting such
  105  circuits or counties are alleged to have been connected with an
  106  organized criminal conspiracy.
  107         Section 2. Subsection (11) of section 397.407, Florida
  108  Statutes, is amended to read:
  109         397.407 Licensure process; fees.—
  110         (11) Effective July 1, 2017 2016, a service provider
  111  licensed under this part may not refer a prospective, current,
  112  or discharged patient to, or accept a referral from, a recovery
  113  residence unless the recovery residence holds a valid
  114  certificate of compliance as provided in s. 397.487 and is
  115  actively managed by a certified recovery residence administrator
  116  as provided in s. 397.4871 or the recovery residence is owned
  117  and operated by a licensed service provider or a licensed
  118  service provider’s wholly owned subsidiary. For purposes of this
  119  subsection, the term “refer” means to inform a patient by any
  120  means about the name, address, or other details of the recovery
  121  residence. However, this subsection does not require a licensed
  122  service provider to refer any patient to a recovery residence,
  123  or the licensed service provider, as applicable. This subsection
  124  does not prohibit a referral by a recovery residence to a
  125  licensed service provider when the recovery residence, including
  126  its owners, operators, and employees, do not benefit, directly
  127  or indirectly, from the referral, and does not apply to a
  128  licensed service provider under contract with a managing entity
  129  as defined in s. 394.9082.
  130         Section 3. Paragraphs (g) and (h) of subsection (7) of
  131  section 397.501, Florida Statutes, are amended to read:
  132         397.501 Rights of individuals.—Individuals receiving
  133  substance abuse services from any service provider are
  134  guaranteed protection of the rights specified in this section,
  135  unless otherwise expressly provided, and service providers must
  136  ensure the protection of such rights.
  137         (7) RIGHT TO CONFIDENTIALITY OF INDIVIDUAL RECORDS.—
  138         (g) An order authorizing the disclosure of an individual’s
  139  records may be applied for by any person having a legally
  140  recognized interest in the disclosure which is sought. The
  141  application may be filed alone separately or as part of a
  142  pending civil action or an active criminal investigation in
  143  which it appears that the individual’s records are needed to
  144  provide evidence. An application must use a fictitious name,
  145  such as John Doe or Jane Doe, to refer to any individual and may
  146  not contain or otherwise disclose any identifying information
  147  unless the individual is the applicant or has given a written
  148  consent to disclosure or the court has ordered the record of the
  149  proceeding sealed from public scrutiny.
  150         (h)1. For applications filed alone or as part of a pending
  151  civil action, the individual and the person holding the records
  152  from whom disclosure is sought must be given adequate notice in
  153  a manner which will not disclose identifying information to
  154  other persons, and an opportunity to file a written response to
  155  the application, or to appear in person, for the limited purpose
  156  of providing evidence on the statutory and regulatory criteria
  157  for the issuance of the court order.
  158         2. Applications filed as part of an active criminal
  159  investigation may, in the discretion of the court, be granted
  160  without notice. Although no express notice is required to the
  161  agents, owners, and employees of the treatment provider or to
  162  any patient whose records are to be disclosed, upon
  163  implementation of an order so granted, any of these persons must
  164  be afforded an opportunity to seek revocation or amendment of
  165  the order, limited to the presentation of evidence on the
  166  statutory and regulatory criteria for the issuance of the order.
  167         Section 4. Section 397.55, Florida Statutes, is created to
  168  read:
  169         397.55 Prohibition of deceptive marketing practices.—
  170         (1) The Legislature recognizes that consumers of substance
  171  abuse treatment have disabling conditions and that such
  172  consumers and their families are vulnerable and at risk of being
  173  easily victimized by fraudulent marketing practices that
  174  adversely impact the delivery of health care. To protect the
  175  health, safety, and welfare of this vulnerable population, a
  176  service provider, an operator of a recovery residence, or a
  177  third party who provides any form of advertising or marketing
  178  services to a service provider or an operator of a recovery
  179  residence may not engage in any of the following marketing
  180  practices:
  181         (a) Making a false or misleading statement or providing
  182  false or misleading information about the provider’s or
  183  operator’s or third party’s products, goods, services, or
  184  geographical locations in its marketing, advertising materials,
  185  or media or on its website.
  186         (b) Including on its website false information or
  187  electronic links, coding or activation that provides false
  188  information or that surreptitiously directs the reader to
  189  another website.
  190         (c) Soliciting, receiving, or making an attempt to solicit
  191  or receive a commission, benefit, bonus, rebate, kickback, or
  192  bribe, directly or indirectly, in cash or in kind, or engaging
  193  or making an attempt to engage in a split-fee arrangement in
  194  return for a referral or an acceptance or acknowledgment of
  195  treatment from a service provider or recovery residence.
  196         (d)Entering into a contract with a marketing provider who
  197  agrees to generate referrals or leads for the placement of
  198  patients with a service provider or in a recovery residence
  199  through a call center or a web-based presence, unless the
  200  service provider or the operator of the recovery residence
  201  discloses the following to the prospective patient so that the
  202  patient can make an informed health care decision:
  203         1. Clear and concise language and instructions that allow
  204  the prospective patient to easily determine whether the
  205  marketing provider represents specific licensed service
  206  providers or recovery residences that pay a fee to the marketing
  207  provider, and the identity of such service providers or recovery
  208  residences; and
  209         2. Clear and concise instructions that allow the
  210  prospective patient to easily access lists of licensed service
  211  providers and recovery residences on the department website.
  212         (2) A person or entity must obtain a license from the
  213  Department of Business and Professional Regulation before
  214  attempting, by any method or design, including, but not limited
  215  to, a call center or a web-based presence, to generate a
  216  referral or lead for the placement of a patient with a service
  217  provider or in a recovery residence. As a condition of the
  218  license, such a person or entity must maintain an office in the
  219  state for the purpose of service of process.
  220         (3) In addition to any other punishment authorized by law,
  221  a person or entity that knowingly and willfully violates
  222  paragraph (1)(a), paragraph (1)(b), or paragraph (1)(d) commits
  223  a misdemeanor of the first degree, punishable as provided in s.
  224  775.083 or s. 775.089. A violation of paragraph (1)(c) is a
  225  violation of the prohibition on patient brokering and may
  226  subject the party committing the violation to criminal penalties
  227  under s. 817.505.
  228         Section 5. Section 817.0345, Florida Statutes, is created
  229  to read:
  230         817.0345 Prohibition of fraudulent marketing practices.—It
  231  is unlawful for any person to knowingly and willfully make a
  232  materially false or misleading statement or provide false or
  233  misleading information about the identity, products, goods,
  234  services, or geographical location of a licensed service
  235  provider, as defined in chapter 397, in marketing, advertising
  236  materials, or other media or on a website with the intent to
  237  induce another person to seek treatment with that service
  238  provider. A person who violates this section commits a felony of
  239  the third degree, punishable as provided in s. 775.082, s.
  240  775.083, or s. 775.084.
  241         Section 6. Subsections (1) and (4) of section 817.505,
  242  Florida Statutes, are amended to read:
  243         817.505 Patient brokering prohibited; exceptions;
  244  penalties.—
  245         (1) It is unlawful for any person, including any health
  246  care provider or health care facility, to:
  247         (a) Offer or pay a any commission, benefit, bonus, rebate,
  248  kickback, or bribe, directly or indirectly, in cash or in kind,
  249  or engage in any split-fee arrangement, in any form whatsoever,
  250  to induce the referral of a patient patients or patronage to or
  251  from a health care provider or health care facility;
  252         (b) Solicit or receive a any commission, benefit, bonus,
  253  rebate, kickback, or bribe, directly or indirectly, in cash or
  254  in kind, or engage in any split-fee arrangement, in any form
  255  whatsoever, in return for referring a patient patients or
  256  patronage to or from a health care provider or health care
  257  facility;
  258         (c) Solicit or receive a any commission, benefit, bonus,
  259  rebate, kickback, or bribe, directly or indirectly, in cash or
  260  in kind, or engage in any split-fee arrangement, in any form
  261  whatsoever, in return for the acceptance or acknowledgment of
  262  treatment from a health care provider or health care facility;
  263  or
  264         (d) Aid, abet, advise, or otherwise participate in the
  265  conduct prohibited under paragraph (a), paragraph (b), or
  266  paragraph (c).
  267         (4)(a) Any person, including an officer, partner, agent,
  268  attorney, or other representative of a firm, joint venture,
  269  partnership, business trust, syndicate, corporation, or other
  270  business entity, who violates any provision of this section
  271  commits a felony of the third degree, punishable as provided in
  272  s. 775.082, s. 775.083, or s. 775.084, and shall be ordered to
  273  pay a fine of $50,000.
  274         (b) Any person, including an officer, partner, agent,
  275  attorney, or other representative of a firm, joint venture,
  276  partnership, business trust, syndicate, corporation, or other
  277  business entity, who violates any provision of this section,
  278  where the prohibited conduct involves 10 or more patients but
  279  fewer than 20 patients, commits a felony of the second degree,
  280  punishable as provided in s. 775.082, s. 775.083, or s. 775.084,
  281  and shall be ordered to pay a fine of $100,000.
  282         (c) Any person, including an officer, partner, agent,
  283  attorney, or other representative of a firm, joint venture,
  284  partnership, business trust, syndicate, corporation, or other
  285  business entity, who violates any provision of this section,
  286  where the prohibited conduct involves 20 or more patients,
  287  commits a felony of the first degree, punishable as provided in
  288  s. 775.082, s. 775.083, or s. 775.084, and shall be ordered to
  289  pay a fine of $500,000.
  290         Section 7. Paragraph (a) of subsection (8) of section
  291  895.02, Florida Statutes, is amended to read:
  292         895.02 Definitions.—As used in ss. 895.01-895.08, the term:
  293         (8) “Racketeering activity” means to commit, to attempt to
  294  commit, to conspire to commit, or to solicit, coerce, or
  295  intimidate another person to commit:
  296         (a) Any crime that is chargeable by petition, indictment,
  297  or information under the following provisions of the Florida
  298  Statutes:
  299         1. Section 210.18, relating to evasion of payment of
  300  cigarette taxes.
  301         2. Section 316.1935, relating to fleeing or attempting to
  302  elude a law enforcement officer and aggravated fleeing or
  303  eluding.
  304         3. Section 403.727(3)(b), relating to environmental
  305  control.
  306         4. Section 409.920 or s. 409.9201, relating to Medicaid
  307  fraud.
  308         5. Section 414.39, relating to public assistance fraud.
  309         6. Section 440.105 or s. 440.106, relating to workers’
  310  compensation.
  311         7. Section 443.071(4), relating to creation of a fictitious
  312  employer scheme to commit reemployment assistance fraud.
  313         8. Section 465.0161, relating to distribution of medicinal
  314  drugs without a permit as an Internet pharmacy.
  315         9. Section 499.0051, relating to crimes involving
  316  contraband, adulterated, or misbranded drugs.
  317         10. Part IV of chapter 501, relating to telemarketing.
  318         11. Chapter 517, relating to sale of securities and
  319  investor protection.
  320         12. Section 550.235 or s. 550.3551, relating to dogracing
  321  and horseracing.
  322         13. Chapter 550, relating to jai alai frontons.
  323         14. Section 551.109, relating to slot machine gaming.
  324         15. Chapter 552, relating to the manufacture, distribution,
  325  and use of explosives.
  326         16. Chapter 560, relating to money transmitters, if the
  327  violation is punishable as a felony.
  328         17. Chapter 562, relating to beverage law enforcement.
  329         18. Section 624.401, relating to transacting insurance
  330  without a certificate of authority, s. 624.437(4)(c)1., relating
  331  to operating an unauthorized multiple-employer welfare
  332  arrangement, or s. 626.902(1)(b), relating to representing or
  333  aiding an unauthorized insurer.
  334         19. Section 655.50, relating to reports of currency
  335  transactions, when such violation is punishable as a felony.
  336         20. Chapter 687, relating to interest and usurious
  337  practices.
  338         21. Section 721.08, s. 721.09, or s. 721.13, relating to
  339  real estate timeshare plans.
  340         22. Section 775.13(5)(b), relating to registration of
  341  persons found to have committed any offense for the purpose of
  342  benefiting, promoting, or furthering the interests of a criminal
  343  gang.
  344         23. Section 777.03, relating to commission of crimes by
  345  accessories after the fact.
  346         24. Chapter 782, relating to homicide.
  347         25. Chapter 784, relating to assault and battery.
  348         26. Chapter 787, relating to kidnapping or human
  349  trafficking.
  350         27. Chapter 790, relating to weapons and firearms.
  351         28. Chapter 794, relating to sexual battery, but only if
  352  such crime was committed with the intent to benefit, promote, or
  353  further the interests of a criminal gang, or for the purpose of
  354  increasing a criminal gang member’s own standing or position
  355  within a criminal gang.
  356         29. Former s. 796.03, former s. 796.035, s. 796.04, s.
  357  796.05, or s. 796.07, relating to prostitution.
  358         30. Chapter 806, relating to arson and criminal mischief.
  359         31. Chapter 810, relating to burglary and trespass.
  360         32. Chapter 812, relating to theft, robbery, and related
  361  crimes.
  362         33. Chapter 815, relating to computer-related crimes.
  363         34. Chapter 817, relating to fraudulent practices, false
  364  pretenses, fraud generally, and credit card crimes, and patient
  365  brokering.
  366         35. Chapter 825, relating to abuse, neglect, or
  367  exploitation of an elderly person or disabled adult.
  368         36. Section 827.071, relating to commercial sexual
  369  exploitation of children.
  370         37. Section 828.122, relating to fighting or baiting
  371  animals.
  372         38. Chapter 831, relating to forgery and counterfeiting.
  373         39. Chapter 832, relating to issuance of worthless checks
  374  and drafts.
  375         40. Section 836.05, relating to extortion.
  376         41. Chapter 837, relating to perjury.
  377         42. Chapter 838, relating to bribery and misuse of public
  378  office.
  379         43. Chapter 843, relating to obstruction of justice.
  380         44. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or
  381  s. 847.07, relating to obscene literature and profanity.
  382         45. Chapter 849, relating to gambling, lottery, gambling or
  383  gaming devices, slot machines, or any of the provisions within
  384  that chapter.
  385         46. Chapter 874, relating to criminal gangs.
  386         47. Chapter 893, relating to drug abuse prevention and
  387  control.
  388         48. Chapter 896, relating to offenses related to financial
  389  transactions.
  390         49. Sections 914.22 and 914.23, relating to tampering with
  391  or harassing a witness, victim, or informant, and retaliation
  392  against a witness, victim, or informant.
  393         50. Sections 918.12 and 918.13, relating to tampering with
  394  jurors and evidence.
  395         Section 8. This act shall take effect July 1, 2017.