28 Nov CAN THE NURSING HOME GET IN TROUBLE IF THE NURSING HOME EMPLOYEES KNOW THAT THE NONLAWYER MEDICAID PLANNER IS ENGAGING IN UPL?
Yes, it is possible. According to Florida Statute 777.011, (and as stated in Chapter 3):
Both referral sources and seniors who retain a nonlawyer for Medicaid planning purposes should be aware of the possible illegality of their actions, however unwitting or intentional their actions may be.
“Whoever commits any criminal offense … or aids, abets, counsels, hires, or otherwise procures such offense to be committed … is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”
In addition to state mandatory reporting laws, federal law requires long-term care facilities that receive at least $10,000 in federal funds during the preceding year to report suspected crimes against a resident to state survey agencies and to local law enforcement.
Specifically, the law requires that the owner, operator, employee, manager, agent, or contractor of a covered facility report “any reasonable suspicion of a crime,” as defined by local law, committed against a resident of, or someone receiving care from, the facility.
Could a nursing home employee referring to a nonlawyer who engages in UPL result in fines?
Yes. In cases in which the employee or nursing home has a business interest (i.e. receives a kick-back or financial reward) with the nonlawyer to which he or she makes referrals, certain Florida anti-kickback statutes may be imposed.
It is a good idea for nursing home staff and operators to have an understanding of the following Florida statutes regulating bribes, kickbacks, solicitations and rebates as it pertains to Medicaid planning activities and referring residents to nonlawyer Medicaid planners.
Chapter 400 – NURSING HOMES AND RELATED HEALTH CARE FACILITIES
Fla. Stat. 400.17 Bribes, kickbacks, certain solicitations prohibited.—
(1) As used in this section, the term:
(a) “Bribe” means any consideration corruptly given, received, promised, solicited, or offered to any individual with intent or purpose to influence the performance of any act or omission.
(b) “Kickback” means that part of the payment for items or services which is returned to the payor by the provider of such items or services with the intent or purpose to induce the payor to purchase the items or services from the provider.
(2) Whoever furnishes items or services directly or indirectly to a nursing home resident and solicits, offers, or receives any:
(a) Kickback or bribe in connection with the furnishing of such items or services or the making or receipt of such payment; or
(b) Return of part of an amount given in payment for referring any such individual to another person for the furnishing of such items or services; is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by fine not exceeding $5,000, or both.
(3) No person shall, in connection with the solicitation of contributions to nursing homes, willfully misrepresent or mislead anyone, by any manner, means, practice, or device whatsoever, to believe that the receipts of such solicitation will be used for charitable purposes if such is not the fact.
(4) Solicitation of contributions of any kind in a threatening, coercive, or unduly forceful manner by or on behalf of a nursing home by any agent, employee, owner, or representative of a nursing home shall be grounds for denial, suspension, or revocation of the license for any nursing home on behalf of which such contributions were solicited.
(5) The admission, maintenance, or treatment of a nursing home resident whose care is supported in whole or in part by state funds may not be made conditional upon the receipt of any manner of contribution or donation from any person. However, this may not be construed to prohibit the offer or receipt of contributions or donations to a nursing home which are not related to the care of a specific resident. Contributions solicited or received in violation of this subsection shall be grounds for denial, suspension, or revocation of a license for any nursing home on behalf of which such contributions were solicited.
Fla. Stat. 400.176 Rebates prohibited; penalties.—
(1) It is unlawful for any person to pay or receive any commission, bonus, kickback or rebate or engage in any split-fee arrangement in any form whatsoever with any physician, surgeon, organization, agency or person either directly indirectly, for residents referred to a nursing home licensed under this part.
(2) The agency shall enforce subsection (1). In the case of an entity not licensed by the agency, administrative penalties may include:
(a) A fine not to exceed $5,000; and
(b) If applicable, a recommendation by the agency to the appropriate licensing board that disciplinary action be taken.
Excerpt From: John R. Frazier, Leonard E. Mondschein. “Protecting Nursing Homes and Their Residents from the Unlicensed Practice of Law.” iBooks.