In Florida, Senate Bill 768 went into effect on July 1, 2023, amending the Patient Self-Referral Act of 1992. The Florida “mini-Stark law” differs from federal law in several ways, including only applying to physician investment interests (not the broader, “financial interests” under the Stark law), and applying to all sources of health care payment (not just Medicare and Medicaid as the Stark law does).
The referral prohibition under the Florida law also covers designated health services (including clinical laboratory services, physical therapy services, diagnostic imaging services, and radiation therapy services) as well as other health care items and services. Referrals other than designated health services are prohibited unless the investment interest is in certain publicly traded securities. For investments in entities that are not publicly traded, certain requirements must be met, such as limiting the percentage of ownership held by investors who are in a position to make referrals.
The Florida law includes exceptions for specific types of arrangements that are not considered “referrals” under the Act. One exception relates to referrals within a solo provider’s practice or a group practice. Prior to the 2023 change, this exception was subject to a strict supervision requirement, mandating that the referred item or services must have been provided or performed by or under the direct supervision of the referring health care provider or group practice. This supervision requirement applied to all orders, recommendations, or plans of care from a physician that were provided solely for patients of the referring physician or group practice. For “direct supervision,” it required that the supervising physician be “present in the office suite,” meaning they needed to be physically present and able to provide assistance and direction when the services were being performed.
As part of the July 1, 2023, change, however, the “direct supervision” requirement has been replaced with the requirement that the health care item or service be subject to “supervision” of the referring physician or group member “if such supervision complies with all applicable Medicare payment and coverage rules for services.” This may allow for imaging services to be performed in instances where the referring physician (or member of the physician’s group practice) is not directly on site.
While this change is applicable to the Florida “mini-Stark law,” there are other laws that may mandate a higher level of supervision, such as the Florida Medicaid program, which still requires direct physician supervision for non-invasive vascular studies.
Interestingly, this legislation passed unanimously in the Florida House and Senate, showing that there is bipartisan support for this change.