[ Friday, January 30, 2004 ]


(OT) Probably bad law: I don't know too much about the Florida state anti-kickback law, but a state appeals court in Florida just ruled it unconstitutional. The 3rd District Court of Appeals affirmed a Florida trial court that found the state statute unconstitutional because it goes farther than the federal anti-kickback law. As you probably know, the federal anti-kickback law makes it illegal to offer or receive remuneration (often misspelled renumeration), in cash or in kind, directly or indirectly, in exchange for the referral of patients for services that will be paid for by governmental programs. The federal law does have some "safe harbors," which outline specific arrangements that might theoretically fall into the definition but that the government has determined are not in violation of the federal law. In other words, if you have an arrangement that might be considered to result in indirect remuneration for referrals (like a services agreement where the party paying for the services is also getting referrals from the party providing the service), but that meets the safe harbor restrictions (the agreement is in writing, for a year or more, for fair market value, not dependent on referrals, etc. etc. etc.), the arrangement is deemed to not violate the federal anti-kickback law.

Apparently, the Florida anti-kickback law has a different definition of what constitutes a kickback, and does not have safe harbors. Therefore, an arrangement that does not violate the federal law (because it fits in a safe harbor) might violate Florida law. The court determined that the Florida law "criminalizes certain activity that is protected under the federal antikickback statute and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. "

Huh? First, the safe harbors come from HHS, not from Congress. Secondly, the safe harbors don't "protect" the activities listed in them, like they are defined rights; instead, the safe harbors "protect" the participants in those activities from prosecution for a federal offense, not from prosecution for a related but differently-defined state law offense. It's sort of like saying, if the federal government imposes a 55 mph speed limit, the states can't set a lower limit. Now, an argument could be made that the state shouldn't be involved in passing laws that impact Medicare, since that's a federal program; but the Florida law impacts both Medicare and Medicaid (as well as private pay patients, I think -- see caveat below), and Medicaid is at least in part a state program.

I'm no expert on the Florida law (and the Texas law is different -- and toothless) and I haven't read the full Florida decision, but this does not seem like good law. Not that I want to see lots of fraud and abuse enforcement, either. But it makes no sense that just because the federal government says "we prohibit this but not that" means that the state government can't say "we prohibit that" (unless the federal government has explicitly preempted state law interference and taken over the entire field of play, which isn't -- or shouldn't be -- the case here).

Jeff [4:45 PM]

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