When one speaks of anti-fraud laws or kickback prohibitions, we often only think of the prohibitions in federal law. Nevertheless, the Florida statutes and administrative code contain numerous anti-fraud provisions and kickback prohibitions. For the healthcare industry, these prohibitions affect hospitals, physicians, pharmacies, nursing homes, home health agencies and generically most providers of healthcare items or services.¹ This article will focus on the provisions relating to home health agencies, hospitals, nursing homes, assisted living facilities, laboratories and health care clinics. 

Home Health Agency Law Amendments of 2008

When HB 7083 was enacted into law, a wide variety of significant changes altered the world of home health agencies (hereinafter “HHA”). These changes included prohibitions on any remuneration to certain persons, elevated standards for licensure application approval and elevated professional requirements.² The Agency for Health Care Administration (AHCA) is tasked with enforcing these provisions. The reasons for these changes are contained in a 2008 presentation that was given jointly by AHCA and the Health Care Association of Florida (“HCAF”).³ The stated purpose for enacting this legislation was the attempt to combat fraud.⁴ This article addresses some of the more significant changes.

Application Provisions

First, amended Section 400.471, Florida Statutes, requires applicants to provide a business plan, evidence of contingency funding, documents demonstrating a financial ability to operate (compiled and signed by a certified public accountant), a list of all other ownership interests in health care entities for each of the applicant’s controlling interests, proof of application for or accreditation from an approved accrediting organization for initial HHA licensure, and upon request, proof that the applicant’s controlling interests are not controlling interests in another HHA that is located within 10 miles and the same county. Interestingly, the statute does not define the terms “controlling interest,” “ownership interests” or “business plan.” Nonetheless, “controlling interest” is defined in Section 408.803(7),⁵ Florida Statutes, and one would assume that the other two terms will be defined by their common meanings.⁶ 

It should be noted that AHCA considers a change of ownership (“CHOW”) application as an “initial” application, and therefore any sale or transfer of an HHA or HHA interest that meets the definition of a CHOW in Section 408.803(5), Florida Statutes, will require accreditation or proof of application for accreditation in order to comply with the statute.⁷