Patient Brokering: Don't do it.
The addiction treatment provider community in Florida has been shaken following the arrest of James Kigar, CEO of Whole Life Recovery, a prominent drug and alcohol treatment facility based in Boyton, Florida. This rabbit hole just keeps getting deeper, and as investigators from the State Attorney's Sober Home Task Force dig ever deeper, the list of charges continue to grow.
At the time of writing, Kigar faces 95 counts of patient brokering. Many affiliated organizations that work with Whole Life Recovery are now being drawn into the investigation, and some are facing charges of their own. And here's the important thing: Whether they knowingly participated in illegal activity, or not.
The key word is 'knowingly'. Famously, ignorance of the law is no defence. Law suits are damaging to reputations, to business, and to bank balances. That makes it wise for organizations to be aware of potential legal pitfalls, thereby avoiding them. So let's define patient brokering. The Florida Patient Brokering Act was provisioned in 2016, and comes in as Chapter 817, Clause 505 (it's a lengthy read but here's the link for those that want it: Florida Patient Brokering Statute
Cutting away the legalese, it is 'unlawful for any person, health care provider or health care facility to offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility...', and that is just the opening clause.
In a nutshell, incentivising your business network is a no-no. One example of an illegal incentive would be to offer rent free accommodation to your addicts on the proviso that they undergo regular drug tests. Wait. What? It's illegal to drug test recovering addicts? Well no, it isn't actually illegal. Unless you have a lucrative deal with your preferred testing facility and the charges to the addicts for those tests is, frankly, astronomical. Considering that off the shelf testing kits can go for as little as $25, this practice is definitely something the State Attorney's Office would want to talk with you about.
This is a perfect example of the gray area surrounding this thorny issue. Legitimate arrangements with reputable testing facilities come under the same scrutiny as do questionable ones. Context here is vital. Providers are well advised to re-examine current arrangements in light of this legislation, as the Sober Home Task Force is turning over rocks right now and looking at everything under them with their legal microscopes. Knowingly or not (there's that word again), facilities may run foul of the Patient Brokering act.
On January 17 at the PGA National Resort, Rebecca Zissel of Weiner & Thompson, Delray Beach FL, will speak to patient brokering and other matters at the SoFlo 2017 Conference on addiction treatment and behavioral health. An experienced attorney, Rebecca is fluent in all aspects of Floridian law and will be able to assist attendees with questions. For those able to attend, this will be a great opportunity to get valuable insight into this and many other issues, and guidance on how to avoid some of those pitfalls. For those that cannot attend, you will miss a lively conference full of exciting speakers.
Regardless, we encourage all healthcare providers to take the time to acquaint yourselves with the law, and with how it relates to your own patients and organizational arrangements. You do not want to be under that microscope.