Reminder to Health Care Providers: You Have to Disclose to Patients That You Are an Investor in the Entity To Which You Are Referring Them
The following article was published in the August 2016 edition of South Florida Hospital News and Healthcare Report.
Attorneys may sometimes discover that, unknown to the client, their clients may be engaging in conduct that is violative of the law. Much of the time, the client simply isn't aware that such law exists. One of the more common statutory provisions that slips through the cracks is Florida Statute Section 456.052. The foregoing statute provides that a health care provider must disclose, to a patient, his or her investment interest in an entity before he or she refers the patient to such entity. The term "health care provider" in this context not only includes physicians, but also chiropractors, podiatrists, optometrists, and dentists.
Specifically Section 456.052 requires, among other things, that a provider's disclosure be made in writing before making the referral to the entity at issue. In addition, the disclosure form must, at the very least, contain the following: (a) the existence of the investment interest; (b) the name and address of each applicable entity in which the referring health care provider is an investor; (c) the patient's right to obtain the items or services for which the patient has been referred at the location or from the provider or supplier of the patient's choice, including the entity in which the referring provider is an investor; and (d) the names and addresses of at least two alternative sources of such items or services available to the patient. Keep in mind that this statute also covers a provider's referrals to pharmacies in which a provider has an investment interest.
While there is no requirement for providers to obtain a patient's signature on a financial interest disclosure form, it is good practice to do so and save the signed copy. In addition to the requirement to furnish the disclosure form to the patient, a provider must also post a copy of the disclosure form in a "conspicuous place" in his or her office.
It is important to note that compliance with the disclosure requirements in Section 456.052 does not exempt the need for a provider to comply with Florida's Patient Self-Referral-Act, Anti-Kickback Statute, and Anti-Fee Splitting laws. Further, when referring patients to an entity in which he or she has an investment interest, a provider must always consider the federal statutes and regulations such as the Anti-Kickback Statute and Stark Law.
Finally, be aware that Section 456.052 is a criminal statute and, at least on paper, the state of Florida takes violations very seriously. A violation could subject a provider to a first degree misdemeanor violation, fines, and potential disciplinary action by the Florida Medical Board