I just read an article in Home Health Line about a new Florida statute that went into effect July 1. The statute attempts to undo some of the mess created by last year's revised licensure statute. (You may recall that Florida passed a massive revision to its home health licensure statute that incorporated fraud and abuse into the licensure standards.).
The Florida legislature appears to have recognized that the complete prohibition on payments to physicians, except for one medical director, was not reasonable in the home health industry (or any other industry). According to the article, the Florida legislature's response was to allow any relationship that fell within a Stark exception. This is a little bit of good news in Florida, as Stark gives providers a little bit of leeway to rent office space from a physician and to contract with a Physician to be a consultant, medical director, etc.
Of course, the legislation leaves the anti-kickback issues within the purview of the licensing body. This means that the Florida Agency for Health Care Administration will have its surveyors surveying for Stark violations. This is problematic, because surveyors don't understand fraud and abuse (they shouldn't have to, it's not really their specialty). If a surveyor "determines" you have a Stark problem, it can lead to fines and even losing your license. Of course, the surveyor likely will not really understand Stark, which means you end up litigating a "Stark issue" that should never have been raised in the first place. This of course, leads to legal fees, wasted time, and other costs. (Not to mention the risk that you are incorrectly found to have violated the referral prohibition anyways.)
The article quotes a former Florida AHCA attorney and a few providers about what a bad idea expanding the exception is. They cite to cases of home health agencies paying doctors cash in the parking lot in exchange for referrals. This seems to miss the point as this kind of activity is a violation of federal law even with the exceptions allowed (assuming, as the article seems to, that the referrals are Medicare or Medicaid cases). For example, cash payments for referrals are routinely prosecuted under the Anti-Kickback statute.
In my opinion, this kind of activity should be dealt with under the laws intended to combat fraud and abuse. Neither Stark nor the Anti-kickback statute creates an exception for cash payments for referrals and this misconduct would arguably create a prohibited financial relationship in violation of Stark even with all of the 20+ exceptions to Stark. It seems the main attraction to removing the exceptions is it makes it easier for the surveyors to enforce.
In essence, the exceptions get in the way of enforcing the prohibition. If an exception is getting in the way of pursuing a provider, it is likely because the providers have invoked an exception as a legitimate reason for the exchange of remuneration. If they have a legitimate reason for the exchange that falls within one of OIG's or CMS's safe harbors/exceptions, why should the HHA lose its license? CMS and OIG have spent many years considering what relationships are appropriate in health care and promulgating safe harbors/exceptions. (I think they need more, but that is another post.) These safe harbors and exceptions have included notice and comment rulemaking that has resulted in input from providers. It seems at least a little problematic that providers in Florida would be subject to losing their license for an arrangement that would not be considered a prohibited referral under Stark.
Recognizing the exceptions to Stark fixes this problem and is a good first step in fixing the problems created by last years home health law re-write. However, I continue to think incorporating fraud and abuse issues into the licensure requirements is the real problem here. Making fraud and abuse issues part of the licensure requirements asks an entity that has little or no experience with Stark or the Anti-kickback statute to enforce its standards. Surveyors will now have to consider Stark and all of its exceptions when presented with an agency that has a financial relationship with a referring physician. (Of course, this is why the people in the article said the exception had to go.) Having realized that the exceptions needed to apply, Florida now needs to realize that there are other ways to link a violation to a license than asking a surveyor to apply the standards in a survey.
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