Florida Senate - 2016                             CS for SB 1138
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Clemens
       
       586-02375-16                                          20161138c1
    1                        A bill to be entitled                      
    2         An act relating to ethical marketing practices for
    3         substance abuse services; amending s. 397.305, F.S.;
    4         providing legislative intent; amending s. 397.311,
    5         F.S.; defining terms; creating s. 397.335, F.S.;
    6         prohibiting substance abuse treatment providers and
    7         operators of recovery residences from engaging in
    8         certain marketing practices; providing applicability;
    9         providing that the violation of the prohibition
   10         against certain unethical marketing practices by a
   11         provider or operator is a violation of the Florida
   12         Deceptive and Unfair Trade Practices Act; requiring
   13         the Department of Children and Families to submit
   14         certain findings to the Department of Legal Affairs;
   15         amending s. 397.501, F.S.; providing a right to a safe
   16         living environment for certain individuals; amending
   17         s. 456.053, F.S.; defining terms; providing
   18         applicability; providing penalties for violations of
   19         prohibitions against certain referrals; prohibiting a
   20         substance abuse treatment provider from making certain
   21         offers; providing an exemption to the prohibition
   22         against referrals; amending s. 501.2077, F.S.;
   23         defining the term “disabling condition”; expanding the
   24         Florida Deceptive and Unfair Trade Practices Act to
   25         include protections for people with diagnosable
   26         substance abuse disorders and other disabling
   27         conditions and civil penalties for those who commit
   28         violations against such people; revising definitions;
   29         amending s. 817.505, F.S.; adding recovery residences
   30         as entities prohibited from patient brokering;
   31         providing that it is unlawful for a person to solicit
   32         or receive benefits under certain circumstances;
   33         providing applicability; defining the term “recovery
   34         residence”; amending ss. 212.055, 397.416, and
   35         440.102, F.S.; conforming cross-references; providing
   36         an effective date.
   37          
   38  Be It Enacted by the Legislature of the State of Florida:
   39  
   40         Section 1. Subsection (10) is added to section 397.305,
   41  Florida Statutes, to read:
   42         397.305 Legislative findings, intent, and purpose.—
   43         (10) It is the intent of the Legislature to ensure that
   44  treatment and recovery support for individuals who are impaired
   45  by substance abuse disorders are offered in an ethical and
   46  professional manner that includes the use of ethical marketing
   47  practices to ensure the protection of this vulnerable
   48  population.
   49         Section 2. Present subsections (12) through (20) of section
   50  397.311, Florida Statutes, are redesignated as subsections (13)
   51  through (21), respectively, present subsection (21) of that
   52  section is redesignated as subsection (23), present subsection
   53  (23) of that section is redesignated as subsection (26), present
   54  subsection (24) of that section is redesignated as subsection
   55  (25), present subsections (25) through (42) of that section are
   56  redesignated as subsections (27) through (44), respectively,
   57  present subsections (43) through (45) of that section are
   58  redesignated as subsections (46) through (48), respectively, and
   59  new subsections (12), (24), and (45) are added to that section,
   60  to read:
   61         397.311 Definitions.—As used in this chapter, except part
   62  VIII, the term:
   63         (12)“Disabling condition” means:
   64         (a) A diagnosable substance abuse disorder, serious mental
   65  illness, developmental disability, specific learning disability,
   66  or chronic physical illness or disability, or the co-occurrence
   67  of two or more of these conditions.
   68         (b) An educational deficiency that substantially affects a
   69  person’s ability to read and comprehend the terms of a
   70  contractual agreement to which he or she is a party.
   71         (24) “Marketing practices” means all statements made or
   72  information disseminated to the public, whether oral, written,
   73  printed, or otherwise, which are intended to market, advertise,
   74  or entice an individual toward a particular substance abuse
   75  treatment or recovery support program licensed under this
   76  chapter.
   77         (45) “Substance abuse lead generator” means a call center
   78  or similar marketing entity that is contractually engaged by a
   79  substance abuse treatment provider licensed under this chapter
   80  to identify and cultivate prospective patient interest in a
   81  particular substance abuse treatment program or recovery
   82  residence.
   83         Section 3. Section 397.335, Florida Statutes, is created to
   84  read:
   85         397.335 Prohibition of unethical marketing practices.—The
   86  Legislature recognizes that individuals with substance abuse
   87  disorders have disabling conditions that put them at risk of
   88  being vulnerable to fraudulent marketing practices. To protect
   89  the health, safety, and welfare of this vulnerable population,
   90  substance abuse treatment providers licensed under this chapter
   91  and operators of recovery residences may not engage in the
   92  following marketing practices:
   93         (1) Making false or misleading statements or providing
   94  false or misleading information about their products, goods,
   95  services, or geographical location in their marketing,
   96  advertising materials, or media or on their respective websites.
   97         (2) Including on their respective websites coding that
   98  provides false information or surreptitiously directs the reader
   99  to another website.
  100         (3) Soliciting or receiving a commission, benefit, bonus,
  101  rebate, kickback, or bribe, directly or indirectly, in cash or
  102  in kind, or engaging or making an attempt to engage in a split
  103  fee arrangement in return for a referral or an acceptance or
  104  acknowledgment of treatment from a health care provider, health
  105  care facility, or recovery residence. A violation of this
  106  subsection is a violation of the prohibition on patient
  107  brokering and is subject to criminal penalties under s. 817.505.
  108  This subsection does not apply to referrals from recovery
  109  residences to other recovery residences.
  110         (4)Entering into a marketing contract with a substance
  111  abuse lead generator that engages in marketing through a call
  112  center, unless the call center discloses the following to the
  113  caller so that he or she can make an informed health care
  114  decision:
  115         (a) The substance abuse treatment programs it represents.
  116         (b) Clear and concise instructions that allow the caller to
  117  easily access a list of licensed substance abuse treatment
  118  agencies, both public and private, on the department website.
  119  
  120  A substance abuse treatment provider licensed under this chapter
  121  which is operating as a partial hospitalization or an outpatient
  122  program, including an intensive outpatient program, may not
  123  offer a prospective patient free or reduced rent at a recovery
  124  residence to induce the prospective patient to choose it as the
  125  patient’s provider and may not make a direct or an indirect
  126  payment to a recovery residence for a patient’s housing or other
  127  housing-related services. A provider or operator that violates
  128  this section commits a violation of the Florida Deceptive and
  129  Unfair Trade Practices Act under s. 501.2077(2). The Department
  130  of Children and Families shall submit copies of findings related
  131  to violations by entities licensed and regulated under this
  132  chapter to the Department of Legal Affairs.
  133         Section 4. Present subsections (9) and (10) of section
  134  397.501, Florida Statutes, are redesignated as subsections (10)
  135  and (11), respectively, and a new subsection (9) is added to
  136  that section, to read:
  137         397.501 Rights of individuals.—Individuals receiving
  138  substance abuse services from any service provider are
  139  guaranteed protection of the rights specified in this section,
  140  unless otherwise expressly provided, and service providers must
  141  ensure the protection of such rights.
  142         (9) RIGHT TO SAFE LIVING ENVIRONMENT.—Each individual
  143  receiving treatment services in a residential treatment facility
  144  or living in a recovery residence has the right to a safe living
  145  environment free from drugs, alcohol, harassment, abuse, and
  146  harm.
  147         Section 5. Paragraphs (a) and (i) of subsection (3) of
  148  section 456.053, Florida Statutes, are amended, present
  149  paragraph (o) of that subsection is redesignated as paragraph
  150  (q), present paragraph (p) of that subsection is redesignated as
  151  paragraph (o), present paragraphs (q) and (r) of that subsection
  152  are redesignated as paragraphs (r) and (s), respectively, a new
  153  paragraph (p) is added to that subsection, paragraph (g) of
  154  subsection (5) of that section is amended, a new paragraph (k)
  155  is added to that subsection, and subsection (6) is added to that
  156  section, to read:
  157         456.053 Financial arrangements between referring health
  158  care providers and providers of health care services.—
  159         (3) DEFINITIONS.—For the purpose of this section, the word,
  160  phrase, or term:
  161         (a) “Board” means any of the following boards relating to
  162  the respective professions: the Board of Medicine as created in
  163  s. 458.307; the Board of Osteopathic Medicine as created in s.
  164  459.004; the Board of Chiropractic Medicine as created in s.
  165  460.404; the Board of Podiatric Medicine as created in s.
  166  461.004; the Board of Optometry as created in s. 463.003; the
  167  Board of Pharmacy as created in s. 465.004; and the Board of
  168  Dentistry as created in s. 466.004; and the Board of Clinical
  169  Social Work, Marriage and Family Therapy, and Mental Health
  170  Counseling as created in s. 491.004.
  171         (i) “Health care provider” means any physician licensed
  172  under chapter 458, chapter 459, chapter 460, or chapter 461, or
  173  any health care provider licensed under chapter 463, or chapter
  174  466, or chapter 491.
  175         (p) “Recovery residence” means a residential dwelling unit
  176  or other form of group housing that is offered or advertised
  177  through any means, including oral, written, electronic, or
  178  printed means, and by any person or entity as a residence that
  179  provides a peer-supported, alcohol-free, and drug-free living
  180  environment.
  181         (5) PROHIBITED REFERRALS AND CLAIMS FOR PAYMENT.—Except as
  182  provided in this section:
  183         (g) A violation of this section by a health care provider
  184  constitutes shall constitute grounds for disciplinary action to
  185  be taken by the applicable board pursuant to s. 458.331(2), s.
  186  459.015(2), s. 460.413(2), s. 461.013(2), s. 463.016(2), or s.
  187  466.028(2), or s. 491.009(2). Any hospital licensed under
  188  chapter 395 found in violation of this section is shall be
  189  subject to s. 395.0185(2). A substance abuse treatment provider
  190  licensed under chapter 397 found in violation of this section is
  191  subject to the penalties imposed under ss. 397.415 and 397.461.
  192         (k) A substance abuse treatment provider licensed under
  193  chapter 397 which is operating as a partial hospitalization or
  194  an outpatient program, including an intensive outpatient
  195  program, may not offer a prospective patient free or reduced
  196  rent at a recovery residence to induce the prospective patient
  197  to choose it as the patient’s provider.
  198         (6) EXCEPTIONS TO PROHIBITED REFERRALS.—The prohibitions in
  199  paragraphs (5)(a) and (b) do not apply to referrals made by
  200  substance abuse treatment providers licensed under chapter 397,
  201  any health care service entities owned by such providers or in
  202  which such providers have a financial interest, or subsidiaries
  203  of those health care service entities, to recovery residences or
  204  laboratory testing services in which any of such providers,
  205  entities or subsidiaries have a financial interest if the
  206  financial interest is clearly stated:
  207         (a) In writing to patients, clients, consumers, and
  208  facility residents.
  209         (b) On marketing or advertising materials, including any
  210  information disseminated to the public, whether oral, written,
  211  printed, or otherwise, which is intended to market or advertise
  212  substance abuse treatment services or recovery support.
  213         (c) On a posted notice that can be easily read by patients
  214  in a common area at the substance abuse treatment facility in
  215  which the referring provider has a financial interest.
  216         Section 6. Section 501.2077, Florida Statutes, is amended
  217  to read:
  218         501.2077 Violations involving senior citizen, person who
  219  has a disabling condition disability, military servicemember, or
  220  the spouse or dependent child of a military servicemember; civil
  221  penalties; presumption.—
  222         (1) As used in this section, the term:
  223         (a) “Disabling condition” means:
  224         1. A diagnosable substance abuse disorder, serious mental
  225  illness, developmental disability, specific learning disability,
  226  or chronic physical illness or disability, or the co-occurrence
  227  of two or more of these conditions.
  228         2. An educational deficiency that substantially affects a
  229  person’s ability to read and comprehend the terms of a
  230  contractual agreement to which he or she is a party.
  231         (b) “Major life activities” means functions associated with
  232  the normal activities of independent daily living, such as
  233  caring for one’s self, performing manual tasks, walking, seeing,
  234  hearing, speaking, breathing, learning, and working.
  235         (b) “Mental or educational impairment” means:
  236         1. A mental or psychological disorder or specific learning
  237  disability.
  238         2. An educational deficiency that substantially affects a
  239  person’s ability to read and comprehend the terms of any
  240  contractual agreement entered into.
  241         (c) “Military servicemember” means a person who is on
  242  active duty in, or a veteran of, the United States Armed Forces.
  243         1. “Active duty” has the same meaning as provided in s.
  244  250.01.
  245         2. “Veteran” has the same meaning as provided in s. 1.01.
  246         (d) “Person who has a disabling condition disability” means
  247  a person who has a mental or educational impairment that
  248  substantially limits one or more major life activities.
  249         (e) “Senior citizen” means a person who is 60 years of age
  250  or older.
  251         (2) A person who is willfully using, or has willfully used,
  252  a method, act, or practice in violation of this part which
  253  victimizes or attempts to victimize a senior citizen or a person
  254  who has a disabling condition disability is liable for a civil
  255  penalty of not more than $15,000 for each such violation if she
  256  or he knew or should have known that her or his conduct was
  257  unfair or deceptive.
  258         (3) A person who is willfully using, or has willfully used,
  259  a method, act, or practice in violation of this part directed at
  260  a military servicemember or the spouse or dependent child of a
  261  military servicemember is liable for a civil penalty of not more
  262  than $15,000 for each such violation if she or he knew or should
  263  have known that her or his conduct was unfair or deceptive.
  264         (4) An order of restitution or reimbursement based on a
  265  violation of this part committed against a senior citizen, a
  266  person who has a disabling condition disability, a military
  267  servicemember, or the spouse or dependent child of a military
  268  servicemember has priority over the imposition of civil
  269  penalties for such violations pursuant to this section.
  270         (5) Civil penalties collected pursuant to this section
  271  shall be deposited into the Legal Affairs Revolving Trust Fund
  272  of the Department of Legal Affairs and allocated solely to the
  273  Department of Legal Affairs for the purpose of preparing and
  274  distributing consumer education materials, programs, and
  275  seminars to benefit senior citizens, persons who have a
  276  disabling condition disability, and military servicemembers or
  277  to further enforcement efforts.
  278         Section 7. Subsection (1) of section 817.505, Florida
  279  Statutes, is amended, and paragraph (d) is added to subsection
  280  (2) of that section, to read:
  281         817.505 Patient brokering prohibited; exceptions;
  282  penalties.—
  283         (1) It is unlawful for any person, including any health
  284  care provider, or health care facility, or recovery residence,
  285  to:
  286         (a) Offer or pay any commission, bonus, rebate, kickback,
  287  or bribe, directly or indirectly, in cash or in kind, or engage
  288  in any split-fee arrangement, in any form whatsoever, to induce
  289  the referral of patients or patronage to or from a health care
  290  provider, or health care facility, or recovery residence;
  291         (b) Solicit or receive any commission, benefit, bonus,
  292  rebate, kickback, or bribe, directly or indirectly, in cash or
  293  in kind, or engage in any split-fee arrangement, in any form
  294  whatsoever, in return for referring patients or patronage to or
  295  from a health care provider, or health care facility, or
  296  recovery residence;
  297         (c) Solicit or receive any commission, benefit, bonus,
  298  rebate, kickback, or bribe, directly or indirectly, in cash or
  299  in kind, or engage in any split-fee arrangement, in any form
  300  whatsoever, in return for the acceptance or acknowledgment of
  301  treatment from a health care provider, or health care facility,
  302  or recovery residence; or
  303         (d) Aid, abet, advise, or otherwise participate in the
  304  conduct prohibited under paragraph (a), paragraph (b), or
  305  paragraph (c).
  306  
  307  This subsection does not apply to referrals from recovery
  308  residences to other recovery residences.
  309         (2) For the purposes of this section, the term:
  310         (d) “Recovery residence” means a residential dwelling unit
  311  or other form of group housing that is offered or advertised
  312  through any means, including oral, written, electronic, or
  313  printed means, and by any person or entity as a residence that
  314  provides a peer-supported, alcohol-free, and drug-free living
  315  environment.
  316         Section 8. Paragraph (e) of subsection (5) of section
  317  212.055, Florida Statutes, is amended to read:
  318         212.055 Discretionary sales surtaxes; legislative intent;
  319  authorization and use of proceeds.—It is the legislative intent
  320  that any authorization for imposition of a discretionary sales
  321  surtax shall be published in the Florida Statutes as a
  322  subsection of this section, irrespective of the duration of the
  323  levy. Each enactment shall specify the types of counties
  324  authorized to levy; the rate or rates which may be imposed; the
  325  maximum length of time the surtax may be imposed, if any; the
  326  procedure which must be followed to secure voter approval, if
  327  required; the purpose for which the proceeds may be expended;
  328  and such other requirements as the Legislature may provide.
  329  Taxable transactions and administrative procedures shall be as
  330  provided in s. 212.054.
  331         (5) COUNTY PUBLIC HOSPITAL SURTAX.—Any county as defined in
  332  s. 125.011(1) may levy the surtax authorized in this subsection
  333  pursuant to an ordinance either approved by extraordinary vote
  334  of the county commission or conditioned to take effect only upon
  335  approval by a majority vote of the electors of the county voting
  336  in a referendum. In a county as defined in s. 125.011(1), for
  337  the purposes of this subsection, “county public general
  338  hospital” means a general hospital as defined in s. 395.002
  339  which is owned, operated, maintained, or governed by the county
  340  or its agency, authority, or public health trust.
  341         (e) A governing board, agency, or authority shall be
  342  chartered by the county commission upon this act becoming law.
  343  The governing board, agency, or authority shall adopt and
  344  implement a health care plan for indigent health care services.
  345  The governing board, agency, or authority shall consist of no
  346  more than seven and no fewer than five members appointed by the
  347  county commission. The members of the governing board, agency,
  348  or authority shall be at least 18 years of age and residents of
  349  the county. No member may be employed by or affiliated with a
  350  health care provider or the public health trust, agency, or
  351  authority responsible for the county public general hospital.
  352  The following community organizations shall each appoint a
  353  representative to a nominating committee: the South Florida
  354  Hospital and Healthcare Association, the Miami-Dade County
  355  Public Health Trust, the Dade County Medical Association, the
  356  Miami-Dade County Homeless Trust, and the Mayor of Miami-Dade
  357  County. This committee shall nominate between 10 and 14 county
  358  citizens for the governing board, agency, or authority. The
  359  slate shall be presented to the county commission and the county
  360  commission shall confirm the top five to seven nominees,
  361  depending on the size of the governing board. Until such time as
  362  the governing board, agency, or authority is created, the funds
  363  provided for in subparagraph (d)2. shall be placed in a
  364  restricted account set aside from other county funds and not
  365  disbursed by the county for any other purpose.
  366         1. The plan shall divide the county into a minimum of four
  367  and maximum of six service areas, with no more than one
  368  participant hospital per service area. The county public general
  369  hospital shall be designated as the provider for one of the
  370  service areas. Services shall be provided through participants’
  371  primary acute care facilities.
  372         2. The plan and subsequent amendments to it shall fund a
  373  defined range of health care services for both indigent persons
  374  and the medically poor, including primary care, preventive care,
  375  hospital emergency room care, and hospital care necessary to
  376  stabilize the patient. For the purposes of this section,
  377  “stabilization” means stabilization as defined in s. 397.311(43)
  378  s. 397.311(41). Where consistent with these objectives, the plan
  379  may include services rendered by physicians, clinics, community
  380  hospitals, and alternative delivery sites, as well as at least
  381  one regional referral hospital per service area. The plan shall
  382  provide that agreements negotiated between the governing board,
  383  agency, or authority and providers shall recognize hospitals
  384  that render a disproportionate share of indigent care, provide
  385  other incentives to promote the delivery of charity care to draw
  386  down federal funds where appropriate, and require cost
  387  containment, including, but not limited to, case management.
  388  From the funds specified in subparagraphs (d)1. and 2. for
  389  indigent health care services, service providers shall receive
  390  reimbursement at a Medicaid rate to be determined by the
  391  governing board, agency, or authority created pursuant to this
  392  paragraph for the initial emergency room visit, and a per-member
  393  per-month fee or capitation for those members enrolled in their
  394  service area, as compensation for the services rendered
  395  following the initial emergency visit. Except for provisions of
  396  emergency services, upon determination of eligibility,
  397  enrollment shall be deemed to have occurred at the time services
  398  were rendered. The provisions for specific reimbursement of
  399  emergency services shall be repealed on July 1, 2001, unless
  400  otherwise reenacted by the Legislature. The capitation amount or
  401  rate shall be determined prior to program implementation by an
  402  independent actuarial consultant. In no event shall such
  403  Reimbursement rates may not exceed the Medicaid rate. The plan
  404  must also provide that any hospitals owned and operated by
  405  government entities on or after the effective date of this act
  406  must, as a condition of receiving funds under this subsection,
  407  afford public access equal to that provided under s. 286.011 as
  408  to any meeting of the governing board, agency, or authority the
  409  subject of which is budgeting resources for the retention of
  410  charity care, as that term is defined in the rules of the Agency
  411  for Health Care Administration. The plan shall also include
  412  innovative health care programs that provide cost-effective
  413  alternatives to traditional methods of service and delivery
  414  funding.
  415         3. The plan’s benefits shall be made available to all
  416  county residents currently eligible to receive health care
  417  services as indigents or medically poor as defined in paragraph
  418  (4)(d).
  419         4. Eligible residents who participate in the health care
  420  plan shall receive coverage for a period of 12 months or the
  421  period extending from the time of enrollment to the end of the
  422  current fiscal year, per enrollment period, whichever is less.
  423         5. At the end of each fiscal year, the governing board,
  424  agency, or authority shall prepare an audit that reviews the
  425  budget of the plan, and the delivery of services, and quality of
  426  services, and makes recommendations to increase the plan’s
  427  efficiency. The audit shall take into account participant
  428  hospital satisfaction with the plan and assess the amount of
  429  poststabilization patient transfers requested, and accepted or
  430  denied, by the county public general hospital.
  431         Section 9. Section 397.416, Florida Statutes, is amended to
  432  read:
  433         397.416 Substance abuse treatment services; qualified
  434  professional.—Notwithstanding any other provision of law, a
  435  person who was certified through a certification process
  436  recognized by the former Department of Health and Rehabilitative
  437  Services before January 1, 1995, may perform the duties of a
  438  qualified professional with respect to substance abuse treatment
  439  services as defined in this chapter, and need not meet the
  440  certification requirements contained in s. 397.311(32) s.
  441  397.311(30).
  442         Section 10. Paragraphs (d) and (g) of subsection (1) of
  443  section 440.102, Florida Statutes, are amended to read:
  444         440.102 Drug-free workplace program requirements.—The
  445  following provisions apply to a drug-free workplace program
  446  implemented pursuant to law or to rules adopted by the Agency
  447  for Health Care Administration:
  448         (1) DEFINITIONS.—Except where the context otherwise
  449  requires, as used in this act:
  450         (d) “Drug rehabilitation program” means a service provider,
  451  established pursuant to s. 397.311(41) s. 397.311(39), that
  452  provides confidential, timely, and expert identification,
  453  assessment, and resolution of employee drug abuse.
  454         (g) “Employee assistance program” means an established
  455  program capable of providing expert assessment of employee
  456  personal concerns; confidential and timely identification
  457  services with regard to employee drug abuse; referrals of
  458  employees for appropriate diagnosis, treatment, and assistance;
  459  and followup services for employees who participate in the
  460  program or require monitoring after returning to work. If, in
  461  addition to the above activities, an employee assistance program
  462  provides diagnostic and treatment services, these services shall
  463  in all cases be provided by service providers pursuant to s.
  464  397.311(41) s. 397.311(39).
  465         Section 11. This act shall take effect July 1, 2016.