Florida Combats Patient Brokering Through New Legislation

By Sam Winiko

Floridians know well the devastation associated with America’s opioid epidemic. According to the Florida Department of Law Enforcement, opioids were the cause, or present at the time, of death in 10,621 cases in 2016, an increase of 89.46% from 2012. But Floridians are less familiar with how the expansion of insurance coverage for behavioral health
under the ACA and the Mental Health Parity and Addiction Equity Act (MHPAEA), though critical for elective treatment of opioid and other substance use disorders (SUDs), has led to the proliferation of unscrupulous treatment and recovery residence providers. In response, the Florida Legislature appropriated funds to the State Attorney’s Oce for the Fifteenth Judicial Circuit, led by Dave Aronberg, to create what has been termed the “Sober Homes Task Force.” The Task Force is a body of elected officials, civic leaders, industry providers, and health care attorneys, charged with further uncovering these exploitive practices and making specific recommendations to move SUD health care in Florida towards transparency and ethical behavior through new legislation and a stronger regulatory framework.

In its 2017 report, the Task Force identified that patient brokering, as addressed in the Patient Brokering Act, § 817.505, Florida Statutes (the “PBA”), was prevalent among
industry abuses, and most often when in connection with illegal referrals from recovery residences that served not as homes of respite, but rather as warehouses of patients. State Attorney Aronberg convened the Palm Beach County Grand Jury in 2016 to investigate these issues and found that, when patients, and particularly those from out-of-state, transition from an inpatient level of care to an outpatient level of care, they were regularly unable to identify a safe and affordable sober living environment to continue their recovery. As insurance providers continue to consider post-inpatient housing to be medically unnecessary, patients changing levels of care often need some form of financial assistance for their housing needs. And often, this leads the unscrupulous treatment provider to pay for the resident’s housing costs in exchange for a referral from the housing provider to their facility, or patronage by the patient him or herself.

The Grand Jury and the Task Force reports both made specific policy recommendations to the Legislature to address these issues, most of which were implemented by HB 807 (2017). Prior to HB 807’s adoption, the PBA made it unlawful for any treatment facility to “oer or pay any commission, bonus, rebate, kickback, or bribe, or engage in any split-fee arrangement” to induce the referral of patients. The law now also includes in its prohibitions the solicitation or receipt of any “benet.” HB 807 also created enhanced penalties based upon the number of patients involved in the prohibited conduct, ranging from a third degree felony up to a first degree felony.

In addition to enhanced penalties for patient brokering violations, HB 807 added § 397.4873, Florida Statutes, to govern referrals to or from recovery residences.
Now, a licensed treatment provider may not make a referral of a prospective, current, or discharged patient to, or accept a referral of such a patient from, a recovery residence unless the recovery residence holds a valid certificate of compliance as provided for in Section 397.487, Florida Statutes. The recovery residence must also be actively managed by a certified recovery residence administrator (“CRRA”) as provided for in Section 397.4871, Florida Statutes. The certificate of compliance is issued by FARR, the Florida Association of Recovery Residences, and certification of the CRRA is credentialed through the Florida Certification Board. The bill also removed the exemption for referrals to a recovery residence owned and operated by a licensed treatment provider (or its wholly owned subsidiary) on or after July 1, 2018. Finally, after June 30, 2019, the State will be able to impose administrative fines of $1,000 for violations of Section 397.4873. It will also be able to either suspend or revoke licensure in cases of repeat violations.

These legislative accomplishments have put Florida at the forefront of the country’s fight against the opioid epidemic. The State is now recognized nationally for its implementation of some of the country’s most comprehensive reforms to combat the epidemic and address patient brokering targeted at those seeking recovery from SUDs. In Palm Beach County, there have been 56 arrests utilizing the PBA, which have led to 26 patient brokering convictions. Increased availability of Narcan (an antidote to opioid overdoses), interdictions of fentanyl and carfentanil, in addition to efforts at all local levels, have also made a significant impact. Though not yet conclusive, overdose rates in Palm Beach County are projected by the Medical Examiner to decrease by nearly 40 percent in 2018.

About Beighley, Myrick, Udell & Lynne P.A.:

In business for over 20 years, BMULaw’s handson and deal-oriented approach helps ensure their clients’ goals are achieved professionally, ethically, efficiently and cost-effectively. With locations in Palm Beach, Broward and Miami- Dade counties, the rm’s scope of services extends across the State of Florida and nationally.

Visit: www.bmulaw.com for more information, and check out articles on emerging legal and business trends in behavioral health care treatment, housing, and marketing practices at: www.soberlawnews.com.