Author Topic: fee splitting in florida  (Read 4411 times)

desheba

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fee splitting in florida
« on: September 26, 2013, 08:56:58 PM »
 Does anyone know where I find a valid link or information about percentage billing in Florida being illegal?  Trying to really understand the fee splitting law of Florida and having a hard time trying to locate a more detailed description of what it is and who it pertains to.  The information I have found seems to be everyone's specific opinion, but no evidence (imo) that states you can not charge a percentage as a billing company.

Any suggestions of where to find accurate information regarding this topic will be greatly appreciated.

This is what the florida statute states:
(i) Paying or receiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers, or pharmacies. The provisions of this paragraph shall not be construed to prevent a physician from receiving a fee for professional consultation services.

found at:  http://www.flsenate.gov/Laws/Statutes/2013/458.331

To me, this just says that a physician can not refer patients for good or services, am I reading this wrong?

Let me know your thoughts,

Thanks!

PMRNC

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Re: fee splitting in florida
« Reply #1 on: September 27, 2013, 08:46:59 AM »
The basis for the final order appears in F.S. 458.331(1), which sets forth a list of acts or omissions for which the board may take disciplinary action against a physician's license. The list includes 458.331(1)(i), which prohibits "paying or receiving any commission,
bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services . . ."

Later on, in October of 97 when the OIG was looking into this as well the Florida Bar did announce that arrangements where a PPM shared in the revenues of physicians services did indeed violate the state fee splitting rule.  Interestingly enough Florida, has a few case files on the books where as states with even more clear language do not.

As a side note, the OIG frowns upon all fee-splitting arrangements. Billing companies should be paid for all work. It's much easier to come up with a pricing structure that is fair to you and to them and based on the work you put in. Would we pay our accountant a % of our income? I think not. The old "We don't get paid until you get paid has finished it's marketing wave" More and more physicians still save the same amounts of money they would paying a %.
Linda Walker
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RichardP

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Re: fee splitting in florida
« Reply #2 on: September 27, 2013, 03:23:08 PM »
It would be interesting to hear a Florida health-care attorney's interpretation of what Linda quoted.  I can imagine there are a few cases on the books where physicians were convicted of violating that language.  That is not in question.  It is the language itself that is in question.

Consider a simplified version of what Linda quoted: we prohibit (these people) from engaging in (these 13 behaviors) - "for patients referred to providers of health care goods and services . . ."

It sounds to me like that language is addressing a situation where Person A refers patient to Person B, and Person B gives part of his income from patient back to Person A as payment/kickback for the referral.

That is, the prohibitions in the statute seem to be applied only to that situation where "patients [are] referred to providers of health care goods and services . . ."  It is not likely that this situation would arise very often, if at all, between a provider and his biller.

This is just a comment.  I'm not trying to start a debate - simply because I don't know enough to debate this.  But I would be interested in a Florida health-care attorney's opinion.
« Last Edit: September 27, 2013, 03:28:43 PM by RichardP »

PMRNC

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Re: fee splitting in florida
« Reply #3 on: September 27, 2013, 07:30:26 PM »
Quote
It would be interesting to hear a Florida health-care attorney's interpretation of what Linda quoted.  I can imagine there are a few cases on the books where physicians were convicted of violating that language.  That is not in question.  It is the language itself that is in question.

I would think the Florida State Bar would have been enough of a legal interpretation..  We do have access to attorney opinions as well. This is a topic I've been researching and gathering data for for quite a few years. It's important to know that the legality and responsibility is on the provider NOT the billing company, if their contract is challenged in court it becomes null and void like the few cases on file that have set precedences in Florida and other states.

In NY it's been a great marketing tool to show the provider with other companies marketing the % based model.
Linda Walker
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RichardP

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Re: fee splitting in florida
« Reply #4 on: September 27, 2013, 10:14:12 PM »
... the Florida Bar did announce that arrangements where a PPM shared in the revenues of physicians services did indeed violate the state fee splitting rule.

As I was reading, it didn't jump out at me what PPM was.  You post made me reconsider this sentence.  I'm assuming PPM = Physician Practice Management?

I'm still stuck on that part of the code that limits the restriction to those situations involving patient referral ("... for patients referred to providers of health care goods and services . . .").  The code quoted in the first post above is obviously aimed at preventing a person or organization from receiving some sort of payment for the referral of patients to providers.  We also have those laws in California, Medicare has such laws, and I imagine all states have variations on that law.

None of the laws that I am familiar with equate percentage billing for services performed to getting an illegal kickback for referring patients to the provider.

Linda, I'm not trying to debate you on this.  And I'm not expecting a response from you re. this post.  I'm just trying to make certain I understand what is actually happening in the quoted code.  It seems to me that the wording of the quoted code is aimed at preventing sweetheart deals re. patient referrals from happening between Practice Management companies and physicians (I'm pretty sure there is a thread where we posted links to cases where convictions were obtained when there was collusion between provider and Practice Management Co with intent to defraud).  It seems less likely to be aimed at situations where the doctor is paying for services rendered when patient referrals are not an issue.

I'm curious if any of the cases "on the books" in Florida involve the simple situation where the doctor was paying a percentage fee to a billing company for services rendered.  I'm inclined to think any cases on the books would involve what that code limits its prohibition to - revenue sharing in situations that involve the referral of patients.

PMRNC

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Re: fee splitting in florida
« Reply #5 on: September 28, 2013, 10:01:56 AM »
There are some states where the language is much more clear. I think each billing company definitely needs to do one of two things 1) assess their billing needs to see if billing on a percentage is essential and / or 2) receive a legal opinion from an attorney on that issue which the Florida bar in this situation can refer you to one.   

In one such case summary by Florida bar:

Physician group sought to enforce restrictive covenant against terminated physician, who had agreed to remove a limitation in his employment agreement’s restrictive covenant as partial consideration for the group entering in to a management services agreement with a practice management company. The payment for management services included 12% of net clinic revenues, and 25% of additional managed care payments. Terminated physician asserted the
restrictive covenant was unenforceable because the service agreement involved illegal fee splitting and, because the service agreement served as consideration for the restrictive covenant, the covenant could not survive

The court found: The agreement impermissibly provided payment of a percentage of revenue that the company’s management services and practice enhancement activities would generate, thus constituting an indirect method of fees for patient referrals..

This next one is interesting:http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Author/BA12A408AB9C662A85256ADB005D61BE

At a meeting in Tampa on October 17, 1997, the board made its most recent statement on the issue of fee splitting related to medical practice management. In its final order filed on November 10, 1997, the board declared that a management contract between Access Medical, Inc., a 15-physician internal medicine group, and a practice management company, Management Company, Inc., violates Florida’s statutory prohibition on fee splitting.1 The management contract, described in the petition for declaratory statement, requires the group to pay Phymatrix a percentage of the group’s net revenues, in addition to all actual operating costs and a flat fee of $450,000 per year. In return, Phymatrix provides management services to the group that include physician network development, managed care contracting, and other efforts to increase the number of patient referrals made to the group. Phymatrix is appealing the board’s final order and the board has agreed to stay the final order pending the outcome of the appeal.2 The decision has attracted substantial attention at the state and national levels, as it threatens the legality of the current popular trend toward similar management contracts between physician practice groups and PPMs.

The basis for the final order appears in F.S. §458.331(1), which sets forth a list of acts or omissions for which the board may take disciplinary action against a physician’s license. The list includes §458.331(1)(i), which prohibits “[p]aying or receiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services. . . .”3

IN Mine and the Florida Bar interpretation of that case I bet if they had not partaken in any credentialing MAYBE the contract would have been valid. Think about it logically... credentialing DOES promote and enhance patient volume/referrals. In network contracts bring patients. In a state that has fee splitting prohibitions it could be that split hair.


Indeed, the concept of “referral” is not very well defined, except within the Florida Patient Self-Referral Act, F.S. §455.236. This act defines “referral” in a somewhat circular fashion to mean “any referral of a patient by a health care provider for health care services, including . . . the forwarding of a patient by a health care provider . . . and the request or establishment of a plan of care . . . .” F.S. §455.236(3)(m). The statute then continues and lists a number of specific referrals which are not “referrals” for purposes of the statute.

The PPM industry has taken a narrow view of “referrals,” considering a prohibited referral as one where a health care provider refers an individual patient to a specific provider or supplier of health care goods and services in which the referring physician has a financial interest. PPMs may obtain contracts for physicians, indirectly leading to a flow of patients, but they are not licensed to practice medicine and have not considered their activities to be the “referral” of individual patients.

The board’s proposed declaratory statement takes a much more expansive view on what constitutes a referral. The concept that the company’s percentage compensation for managed care networking and contracting services could constitute illegal fee splitting threatened to upset the market-created status quo that has driven the proliferation of PPMs in Florida

 I have also accumulated a few legal opinions on fee-splitting from various attorney's in the states that have some sort of fee-splitting reg. Did you know there are 25 states with some sort of fee-splitting prohibition?   Back in 2000 the HBMA actually issued a statement about this and basically said ignore them, the OIG has no govt authority. (oiy vey)    My mom is not an attorney but she's always given me the best advice any attorney can give me... "BETTER TO BE SAFE THAN SORRY".  I'd take that advice over any lawyer any day. LOL


Richard I didn't take this as argumentative at all. I agree that Florida is one of those states that are splitting hairs. NY is nice and simple and VERY clear. :)


I also like to tell billing companies that there are MUCH better ways to charge anyway and that billing a % of collections even in a state where it's not quite CLEAR could be a disadvantage when the billers out there are marketing it. I've scooped up clients looking at billing companies in NY that were billing a % simply by letting them know I care a bit more about their license then the other company, most times I don't even have to defend my way of pricing because that one answer satisfies them and crosses out the company they were looking at.   
« Last Edit: September 28, 2013, 10:20:43 AM by PMRNC »
Linda Walker
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tallmanusa

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Re: fee splitting in florida
« Reply #6 on: September 30, 2013, 08:23:27 PM »
There are many ways to charge fees; one does not make another method right or wrong.
There are major companies both public and private that charge a percentage fee. One of them a public company Athena Health symbol ATHN charges a percentage fee. The public company President has to certify in the annual report under a law called Sarbanes Oxley Law, that the company is not breaking any laws. I am sure they have lawyers who have reviewed this.
The President of ATHN, Jonathan Bush, a cousin of George Bush of Iraq war fame, made over 100 million dollars last year alone, you know how much you made. (You did not know you could make that much money in this business)
ATHN is not the only one, GE is in this business through a subsidiary and so are another dozen or so public companies, they all charge percentage fees. These are public companies so their records are available to public; there are literally thousands of private companies who do the same.
There many ways to charge. Nothing wrong in that. One system is not necessarily better than the other.
I don't waste my time debating this nonsense, I got to go do what Jonathan Bush has been doing, even though I don't have a cousin in the White House. Without a cousin in the White House, my road is long and hard.
« Last Edit: September 30, 2013, 08:26:29 PM by tallmanusa »

PMRNC

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Re: fee splitting in florida
« Reply #7 on: October 02, 2013, 06:56:37 PM »
I agree but I like my moms advice the best:

"Better to be safe than sorry" why even have the issue when you can charge a better way w/OUT question of motive and incentives and also get paid for ALL of your time. Bless the ones who decide to go for it .. hopefully they never have to have it challenged as I am always reminded that in the U.S. It costs money to be right. The lawyers make the money if in doubt. I'll keep my money ;)
Linda Walker
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One Stop Resources, Education and Networking for Medical Billers
www.billerswebsite.com