HOUSE AMENDMENT
                                                  Bill No. SB 46-E
    Amendment No. 1 (for drafter's use only)
                            CHAMBER ACTION
              Senate                               House
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11  Representative(s) Farkas offered the following:
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13         Amendment (with title amendment) 
14         On page 43 from line 14 through page 46, line 2,
15  remove:  all of said lines
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17  and insert:  
18         Section 14.  Section 456.053, Florida Statutes, is
19  amended to read:
20         456.053  Financial arrangements between referring
21  health care providers and providers of health care services.--
22         (1)  SHORT TITLE.--This section may be cited as the
23  "Patient Self-Referral Act of 1992."
24         (2)  LEGISLATIVE INTENT.--It is recognized by the
25  Legislature that the referral of a patient by a health care
26  provider to a provider of health care services in which the
27  referring health care provider has an investment interest
28  represents a potential conflict of interest.  The Legislature
29  finds these referral practices may limit or eliminate
30  competitive alternatives in the health care services market,
31  may result in overutilization of health care services, may
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    File original & 9 copies    05/02/02                          
    hcs0005                     10:17 am         E0046-0052-671915

HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 increase costs to the health care system, and may adversely 2 affect the quality of health care. The Legislature also 3 recognizes, however, that it may be appropriate for providers 4 to own entities providing health care services, and to refer 5 patients to such entities, as long as certain safeguards are 6 present in the arrangement. In respect to the kidney dialysis 7 industry, the Florida Legislature recognizes that publicly 8 held corporations, as defined in this section, provide the 9 majority of dialysis and clinical laboratory services to 10 dialysis patients and that all provisions within subsection 11 (6) of this act shall be applicable to all physicians 12 providing dialysis services with an investment interest or is 13 an investor. It is the intent of the Legislature to provide 14 guidance to health care providers regarding prohibited patient 15 referrals between health care providers and entities providing 16 health care services and to protect the people of Florida from 17 unnecessary and costly health care expenditures. Furthermore, 18 it is the intent of the Legislature to prohibit physicians 19 from making a referral for designated health services to an 20 entity with which the physician or a member of the physician's 21 immediate family has an investment interest or is an investor. 22 (3) DEFINITIONS.--For the purpose of this section, the 23 word, phrase, or term: 24 (a) "Board" means any of the following boards relating 25 to the respective professions: the Board of Medicine as 26 created in s. 458.307; the Board of Osteopathic Medicine as 27 created in s. 459.004; the Board of Chiropractic Medicine as 28 created in s. 460.404; the Board of Podiatric Medicine as 29 created in s. 461.004; the Board of Optometry as created in s. 30 463.003; the Board of Pharmacy as created in s. 465.004; and 31 the Board of Dentistry as created in s. 466.004. 2 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 (b) "Comprehensive rehabilitation services" means 2 services that are provided by health care professionals 3 licensed under part I or part III of chapter 468 or chapter 4 486 to provide speech, occupational, or physical therapy 5 services on an outpatient or ambulatory basis. 6 (c) "Designated health services" means, for purposes 7 of this section, clinical laboratory services, physical 8 therapy services, comprehensive rehabilitative services, 9 diagnostic-imaging services, and radiation therapy services. 10 (d) "Diagnostic imaging services" means magnetic 11 resonance imaging, nuclear medicine, angiography, 12 arteriography, computed tomography, positron emission 13 tomography, digital vascular imaging, bronchography, 14 lymphangiography, splenography, ultrasound, EEG, EKG, nerve 15 conduction studies, and evoked potentials. 16 (e) "Direct supervision" means supervision by a 17 physician who is present in the office suite and immediately 18 available to provide assistance and direction throughout the 19 time services are being performed. 20 (f) "Entity" means any individual, partnership, firm, 21 corporation, or other business entity. 22 (g) "Fair market value" means value in arms length 23 transactions, consistent with the general market value, and, 24 with respect to rentals or leases, the value of rental 25 property for general commercial purposes, not taking into 26 account its intended use, and, in the case of a lease of 27 space, not adjusted to reflect the additional value the 28 prospective lessee or lessor would attribute to the proximity 29 or convenience to the lessor where the lessor is a potential 30 source of patient referrals to the lessee. 31 (h) "Group practice" means a group of two or more 3 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 health care providers legally organized as a partnership, 2 professional corporation, or similar association: 3 1. In which each health care provider who is a member 4 of the group provides substantially the full range of services 5 which the health care provider routinely provides, including 6 medical care, consultation, diagnosis, or treatment, through 7 the joint use of shared office space, facilities, equipment, 8 and personnel; 9 2. For which substantially all of the services of the 10 health care providers who are members of the group are 11 provided through the group and are billed in the name of the 12 group and amounts so received are treated as receipts of the 13 group; and 14 3. In which the overhead expenses of and the income 15 from the practice are distributed in accordance with methods 16 previously determined by members of the group. 17 (i) "Health care provider" means any physician 18 licensed under chapter 458, chapter 459, chapter 460, or 19 chapter 461, or any health care provider licensed under 20 chapter 463 or chapter 466. 21 (j) "Immediate family member" means a health care 22 provider's spouse, child, child's spouse, grandchild, 23 grandchild's spouse, parent, parent-in-law, or sibling. 24 (k) "Investment interest" means an equity or debt 25 security issued by an entity, including, without limitation, 26 shares of stock in a corporation, units or other interests in 27 a partnership, bonds, debentures, notes, or other equity 28 interests or debt instruments. The following investment 29 interests shall be excepted from this definition: 30 1. An investment interest in an entity that is the 31 sole provider of designated health services in a rural area; 4 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 2. An investment interest in notes, bonds, debentures, 2 or other debt instruments issued by an entity which provides 3 designated health services, as an integral part of a plan by 4 such entity to acquire such investor's equity investment 5 interest in the entity, provided that the interest rate is 6 consistent with fair market value, and that the maturity date 7 of the notes, bonds, debentures, or other debt instruments 8 issued by the entity to the investor is not later than October 9 1, 1996. 10 3. An investment interest in real property resulting 11 in a landlord-tenant relationship between the health care 12 provider and the entity in which the equity interest is held, 13 unless the rent is determined, in whole or in part, by the 14 business volume or profitability of the tenant or exceeds fair 15 market value; or 16 4. An investment interest in an entity which owns or 17 leases and operates a hospital licensed under chapter 395 or a 18 nursing home facility licensed under chapter 400. 19 (l) "Investor" means a person or entity owning a legal 20 or beneficial ownership or investment interest, directly or 21 indirectly, including, without limitation, through an 22 immediate family member, trust, or another entity related to 23 the investor within the meaning of 42 C.F.R. s. 413.17, in an 24 entity. 25 (m) "Outside referral for diagnostic imaging services" 26 means a referral of a patient to a group practice or sole 27 provider for diagnostic imaging services by a physician who is 28 not a member of the group practice or of the sole provider's 29 practice and who does not have an investment interest in the 30 group practice or sole provider's practice, for which the 31 group practice or sole provider billed for both the technical 5 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 and the professional fee for the patient, and the patient did 2 not become a patient of the group practice or sole provider's 3 practice. 4 (n) "Patient of a group practice" or "patient of a 5 sole provider" means a patient who receives a physical 6 examination, evaluation, diagnosis, and development of a 7 treatment plan if medically necessary by a physician who is a 8 member of the group practice or the sole provider's practice. 9 (o) "Referral" means any referral of a patient by a 10 health care provider for health care services, including, 11 without limitation: 12 1. The forwarding of a patient by a health care 13 provider to another health care provider or to an entity which 14 provides or supplies designated health services or any other 15 health care item or service; or 16 2. The request or establishment of a plan of care by a 17 health care provider, which includes the provision of 18 designated health services or other health care item or 19 service. 20 3. The following orders, recommendations, or plans of 21 care shall not constitute a referral by a health care 22 provider: 23 a. By a radiologist for diagnostic-imaging services. 24 b. By a physician specializing in the provision of 25 radiation therapy services for such services. 26 c. By a medical oncologist for drugs and solutions to 27 be prepared and administered intravenously to such 28 oncologist's patient, as well as for the supplies and 29 equipment used in connection therewith to treat such patient 30 for cancer and the complications thereof. 31 d. By a cardiologist for cardiac catheterization 6 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 services. 2 e. By a pathologist for diagnostic clinical laboratory 3 tests and pathological examination services, if furnished by 4 or under the supervision of such pathologist pursuant to a 5 consultation requested by another physician. 6 f. By a health care provider who is the sole provider 7 or member of a group practice for designated health services 8 or other health care items or services that are prescribed or 9 provided solely for such referring health care provider's or 10 group practice's own patients, and that are provided or 11 performed by or under the direct supervision of such referring 12 health care provider or group practice; provided, however, 13 that effective July 1, 1999, a physician licensed pursuant to 14 chapter 458, chapter 459, chapter 460, or chapter 461 may 15 refer a patient to a sole provider or group practice for 16 diagnostic imaging services, excluding radiation therapy 17 services, for which the sole provider or group practice billed 18 both the technical and the professional fee for or on behalf 19 of the patient, if the referring physician has no investment 20 interest in the practice. The diagnostic imaging service 21 referred to a group practice or sole provider must be a 22 diagnostic imaging service normally provided within the scope 23 of practice to the patients of the group practice or sole 24 provider. The group practice or sole provider may accept no 25 more that 15 percent of their patients receiving diagnostic 26 imaging services from outside referrals, excluding radiation 27 therapy services. 28 g. By a health care provider for services provided by 29 an ambulatory surgical center licensed under chapter 395. 30 h. By a health care provider for diagnostic clinical 31 laboratory services where such services are directly related 7 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 to renal dialysis. 2 h.i. By a urologist for lithotripsy services. 3 i.j. By a dentist for dental services performed by an 4 employee of or health care provider who is an independent 5 contractor with the dentist or group practice of which the 6 dentist is a member. 7 j.k. By a physician for infusion therapy services to a 8 patient of that physician or a member of that physician's 9 group practice. 10 kl. By a nephrologist for renal dialysis services and 11 supplies, except clinical laboratory services. 12 l. By a home care physician whose principal medical 13 practice consists of treating patients in the patient's 14 private homes. The "present in the office suite" requirements 15 of this section are met if the referring physician or 16 qualified person, technician, or nurse provides the prescribed 17 designated health service to the patient in the patient's 18 private home. For purposes of this section, a private home 19 does not include a nursing, long-term care, or other facility 20 or institution. 21 (p) "Present in the office suite" means that the 22 physician is actually physically present; provided, however, 23 that the health care provider is considered physically present 24 during brief unexpected absences as well as during routine 25 absences of a short duration if the absences occur during time 26 periods in which the health care provider is otherwise 27 scheduled and ordinarily expected to be present and the 28 absences do not conflict with any other requirement in the 29 Medicare program for a particular level of health care 30 provider supervision. 31 (q) "Rural area" means a county with a population 8 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 density of no greater than 100 persons per square mile, as 2 defined by the United States Census. 3 (r) "Sole provider" means one health care provider 4 licensed under chapter 458, chapter 459, chapter 460, or 5 chapter 461, who maintains a separate medical office and a 6 medical practice separate from any other health care provider 7 and who bills for his or her services separately from the 8 services provided by any other health care provider. A sole 9 provider shall not share overhead expenses or professional 10 income with any other person or group practice. 11 (4) REQUIREMENTS FOR SELF-REFERRALS AS DEFINED IN 12 FEDERAL LAW.--Notwithstanding the provisions of this act, the 13 prohibitions for self-referrals shall only be governed 14 consistent with the provisions pursuant to 42 U.S.C., ss. 15 1395nn, "The Stark Law", and accompanying federal regulations, 16 as interpreted and applied, at 42 C.F.F. ss. 411.1, et seq., 17 for all licensed providers as set forth in this section. 18 (5)(4) REQUIREMENTS FOR ACCEPTING OUTSIDE REFERRALS 19 FOR DIAGNOSTIC IMAGING.-- 20 (a) A group practice or sole provider accepting 21 outside referrals for diagnostic imaging services is required 22 to comply with the following conditions: 23 1. Diagnostic imaging services must be provided 24 exclusively by a group practice physician or by a full-time or 25 part-time employee of the group practice or of the sole 26 provider's practice. 27 2. All equity in the group practice or sole provider's 28 practice accepting outside referrals for diagnostic imaging 29 must be held by the physicians comprising the group practice 30 or the sole provider's practice, each of whom must provide at 31 least 75 percent of his or her professional services to the 9 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 group. Alternatively, the group must be incorporated under 2 chapter 617 and must be exempt under the provisions of s. 3 501(c)(3) of the Internal Revenue Code and be part of a 4 foundation in existence prior to January 1, 1999, that is 5 created for the purpose of patient care, medical education, 6 and research. 7 3. A group practice or sole provider may not enter 8 into, extend or renew any contract with a practice management 9 company that provides any financial incentives, directly or 10 indirectly, based on an increase in outside referrals for 11 diagnostic imaging services from any group or sole provider 12 managed by the same practice management company. 13 4. The group practice or sole provider accepting 14 outside referrals for diagnostic imaging services must bill 15 for both the professional and technical component of the 16 service on behalf of the patient, and no portion of the 17 payment, or any type of consideration, either directly or 18 indirectly, may be shared with the referring physician. 19 5. Group practices or sole providers that have a 20 Medicaid provider agreement with the Agency for Health Care 21 Administration must furnish diagnostic imaging services to 22 their Medicaid patients and may not refer a Medicaid recipient 23 to a hospital for outpatient diagnostic imaging services 24 unless the physician furnishes the hospital with documentation 25 demonstrating the medical necessity for such a referral. If 26 necessary, the Agency for Health Care Administration may apply 27 for a federal waiver to implement this subparagraph. 28 6. All group practices and sole providers accepting 29 outside referrals for diagnostic imaging shall report annually 30 to the Agency for Health Care Administration providing the 31 number of outside referrals accepted for diagnostic imaging 10 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 services and the total number of all patients receiving 2 diagnostic imaging services. 3 (b) If a group practice or sole provider accepts an 4 outside referral for diagnostic imaging services in violation 5 of this subsection or if a group practice or sole provider 6 accepts outside referrals for diagnostic imaging services in 7 excess of the percentage limitation established in 8 subparagraph (a)2., the group practice or the sole provider 9 shall be subject to the penalties in subsection (6)(5). 10 (c) Each managing physician member of a group practice 11 and each sole provider who accepts outside referrals for 12 diagnostic imaging services shall submit an annual attestation 13 signed under oath to the Agency for Health Care Administration 14 which shall include the annual report required under 15 subparagraph (a)6. and which shall further confirm that each 16 group practice or sole provider is in compliance with the 17 percentage limitations for accepting outside referrals and the 18 requirements for accepting outside referrals listed in 19 paragraph (a). The agency may verify the report submitted by 20 group practices and sole providers. 21 (6)(5) PROHIBITED REFERRALS AND CLAIMS FOR 22 PAYMENT.--Except as provided in this section: 23 (a) A health care provider may not refer a patient for 24 the provision of designated health services to an entity in 25 which the health care provider is an investor or has an 26 investment interest. 27 (b) A health care provider may not refer a patient for 28 the provision of any other health care item or service to an 29 entity in which the health care provider is an investor 30 unless: 31 1. The provider's investment interest is in registered 11 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 securities purchased on a national exchange or 2 over-the-counter market and issued by a publicly held 3 corporation: 4 a. Whose shares are traded on a national exchange or 5 on the over-the-counter market; and 6 b. Whose total assets at the end of the corporation's 7 most recent fiscal quarter exceeded $50 million; or 8 2. With respect to an entity other than a publicly 9 held corporation described in subparagraph 1., and a referring 10 provider's investment interest in such entity, each of the 11 following requirements are met: 12 a. No more than 50 percent of the value of the 13 investment interests are held by investors who are in a 14 position to make referrals to the entity. 15 b. The terms under which an investment interest is 16 offered to an investor who is in a position to make referrals 17 to the entity are no different from the terms offered to 18 investors who are not in a position to make such referrals. 19 c. The terms under which an investment interest is 20 offered to an investor who is in a position to make referrals 21 to the entity are not related to the previous or expected 22 volume of referrals from that investor to the entity. 23 d. There is no requirement that an investor make 24 referrals or be in a position to make referrals to the entity 25 as a condition for becoming or remaining an investor. 26 3. With respect to either such entity or publicly held 27 corporation: 28 a. The entity or corporation does not loan funds to or 29 guarantee a loan for an investor who is in a position to make 30 referrals to the entity or corporation if the investor uses 31 any part of such loan to obtain the investment interest. 12 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 b. The amount distributed to an investor representing 2 a return on the investment interest is directly proportional 3 to the amount of the capital investment, including the fair 4 market value of any preoperational services rendered, invested 5 in the entity or corporation by that investor. 6 4. Each board and, in the case of hospitals, the 7 Agency for Health Care Administration, shall encourage the use 8 by licensees of the declaratory statement procedure to 9 determine the applicability of this section or any rule 10 adopted pursuant to this section as it applies solely to the 11 licensee. Boards shall submit to the Agency for Health Care 12 Administration the name of any entity in which a provider 13 investment interest has been approved pursuant to this 14 section, and the Agency for Health Care Administration shall 15 adopt rules providing for periodic quality assurance and 16 utilization review of such entities. 17 (c) No claim for payment may be presented by an entity 18 to any individual, third-party payor, or other entity for a 19 service furnished pursuant to a referral prohibited under this 20 section. 21 (d) If an entity collects any amount that was billed 22 in violation of this section, the entity shall refund such 23 amount on a timely basis to the payor or individual, whichever 24 is applicable. 25 (e) Any person that presents or causes to be presented 26 a bill or a claim for service that such person knows or should 27 know is for a service for which payment may not be made under 28 paragraph (c), or for which a refund has not been made under 29 paragraph (d), shall be subject to a civil penalty of not more 30 than $15,000 for each such service to be imposed and collected 31 by the appropriate board. 13 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 (f) Any health care provider or other entity that 2 enters into an arrangement or scheme, such as a cross-referral 3 arrangement, which the physician or entity knows or should 4 know has a principal purpose of assuring referrals by the 5 physician to a particular entity which, if the physician 6 directly made referrals to such entity, would be in violation 7 of this section, shall be subject to a civil penalty of not 8 more than $100,000 for each such circumvention arrangement or 9 scheme to be imposed and collected by the appropriate board. 10 (g) A violation of this section by a health care 11 provider shall constitute grounds for disciplinary action to 12 be taken by the applicable board pursuant to s. 458.331(2), s. 13 459.015(2), s. 460.413(2), s. 461.013(2), s. 463.016(2), or s. 14 466.028(2). Any hospital licensed under chapter 395 found in 15 violation of this section shall be subject to the rules 16 adopted by the Agency for Health Care Administration pursuant 17 to s. 395.0185(2). 18 (h) Any hospital licensed under chapter 395 that 19 discriminates against or otherwise penalizes a health care 20 provider for compliance with this act. 21 (i) The provision of paragraph (a) shall not apply to 22 referrals to the offices of radiation therapy centers managed 23 by an entity or subsidiary or general partner thereof, which 24 performed radiation therapy services at those same offices 25 prior to April 1, 1991, and shall not apply also to referrals 26 for radiation therapy to be performed at no more than one 27 additional office of any entity qualifying for the foregoing 28 exception which, prior to February 1, 1992, had a binding 29 purchase contract on and a nonrefundable deposit paid for a 30 linear accelerator to be used at the additional office. The 31 physical site of the radiation treatment centers affected by 14 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915
HOUSE AMENDMENT Bill No. SB 46-E Amendment No. 1 (for drafter's use only) 1 this provision may be relocated as a result of the following 2 factors: acts of God; fire; strike; accident; war; eminent 3 domain actions by any governmental body; or refusal by the 4 lessor to renew a lease. A relocation for the foregoing 5 reasons is limited to relocation of an existing facility to a 6 replacement location within the county of the existing 7 facility upon written notification to the Office of Licensure 8 and Certification. 9 (j) A health care provider who meets the requirements 10 of paragraphs (b) and (i) must disclose his or her investment 11 interest to his or her patients as provided in s. 456.052. 12 13 14 ================ T I T L E A M E N D M E N T =============== 15 And the title is amended as follows: 16 On page 5, line 8, after the semicolon, 17 18 insert: 19 providing legislative intent; providing the 20 applicability of the Federal "Stark Law" for 21 licensed health providers in Florida; 22 23 24 25 26 27 28 29 30 31 15 File original & 9 copies 05/02/02 hcs0005 10:17 am E0046-0052-671915