Florida's Patient Self Referral Act of 1992 (the Act *) addresses provider referrals of patients to health care entities in which the referring provider holds a financial interest. The Act was passed in response to concern that these so-called "self-referrals" restrain competition, result in over-utilization of health care services, and ultimately increase health care costs.
The Act broadly prohibits self-referrals, but carves out certain exceptions, including the group practice exception. The group practice exception allows referrals to be made by a health care provider who is a sole provider, or member of a group practice, for health care services or items that are prescribed or provided solely for that referring health care provider's, or group practice's, own patients. The exception also requires that such health care services or items be performed or provided by, or under the direct supervision of, the referring health care provider or group practice.
Subsequent to the passage of the Act, it was unclear whether providers outside a group practice were prohibited from referring patients to the group practice. A narrow reading of the statute would limit a provider's rendering of health care services that provider's own patients in order to qualify for the group practice exception of the Act. In Agency for Health Care Administration v. Wingo, the respondent consisted of a group practice which held a financial interest in an MRI. The practice argued that it should be able to perform MRIs for its own patients as well as to accept MRI referrals from non-group physicians who had no financial interest in the group. The First District held that the group practice exception is forfeited once a provider or group practice accepts non-group referrals. In doing so, the First District emphasized the plain meaning of the statute which states that referred services must be"7provided solely for such referring health care provider's or group practice's own patients7"
This strict interpretation of section 455.654, Florida Statutes (1998), has been criticized for placing unnecessary restrictions on the referrals providers and group practices may accept. The legislative intent, as described in the Act, clearly does not support prohibiting referrals to a provider when the referring provider or group has no financial investment in the provider, and when the referring provider will not realize any financial gain from the referral. Further, the federal self-referring law, the Ethics in Patient Referrals Act (commonly known as "Stark"), allows group practices to accept these types of outside referrals without forfeiting the group practice exception.
HB 3969 was introduced during the 1998 legislative session to correct the First District decision. This legislation would have revised the group practice exception to permit a sole provider or a group practice to provide health care services to its own patients when the individual or group practice provides at least fifty percent of such services to its own patients. Further, the legislation would allow these sole providers or group practices to accept referrals from outside providers or group that hold no investment interest in the sole provider or group practice. Unfortunately, HB 3969 did not make it to vote during the 1998 session due to a premature demise in committee. However, continued criticism of the unpopular First District decision makes it likely that the legislature will revisit this issue during the 1999 Legislative session.