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August 26, 2019
Daily Business Review
In an article published in the Daily Business Review on Aug. 26, Fort Lauderdale of counsel Jamie Gelfman discusses Florida’s recently enacted House Bill 369, which is aimed at tackling fraud in substance abuse treatment and the unintended consequences for healthcare providers who conduct business in the state.
The bill implements certain requirements with respect to recovery residences, substance use disorder treatment providers, and their personnel. “However, the bill inadvertently created an ambiguity in Florida’s Patient Brokering Act (PBA), a criminal statute that carries significant penalties, including the imposition of criminal fines and civil and administrative actions,” Gelfman explains.
The bill’s revision to the federal Antikickback Statute (AKS) exception has created significant uncertainties for healthcare providers who continue to operate under the assumption that a certain payment practice or arrangement may be compliant under Florida law because it has been structured to fit within an AKS safe harbor. “There is a reasonable argument that conduct fitting within an AKS safe harbor is not akin to conduct being ‘expressly authorized’ by the AKS,” Gelfman states. “As a result, Florida prosecutors now have the potential ability to take advantage of this ambiguity to prosecute conduct under the PBA that may otherwise be permissible under an AKS safe harbor.”
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