Florida Patient Self-Referral Act: Is It a Private Cause of Action?
That was one of the questions that a court in the Middle District of Florida answered several months ago, but which has not garnered much attention.
More specifically, in State Farm Mutual Automobile Insurance Company v. Physicians Group of Sarasota, LLC, No. 8:13-CV-1932-17-TGW (M.D. Fla. March 25, 2014), plaintiff State Farm alleged that defendants, a physician group, and their principal interest holder, along with various shell companies, and a consulting company, orchestrated a fraudulent referral scheme to unlawfully collect automobile accident victims’ PIP coverage and Medical Payment Coverage benefits for treatment services rendered by the defendant- physician group throughout Florida.
Plaintiff filed a complaint describing the above scheme in detail and alleged several different causes of action, including fraud, unjust enrichment, violations of the Florida Deceptive Unfair Trade Practices Act (FDUPTA), and, of importance here, a violation of the Florida Patient Self-Referral Act (Florida PSRA).
Defendants filed a motion to dismiss the complaint, including Count IV in Plaintiff’s complaint alleging a cause of action under the Florida PSRA, which the court denied and reasoned that:
Defendants argue that Florida’s Patient Self-Referral Act does not provide a private right of action. The provision in dispute states, “[n]o claim for payment may be presented . . . for a service furnished pursuant to a referral prohibited under this section. . . . If an entity collects any amount that was billed in violation of this section, the entity shall refund such amount on a timely basis to the payor or individual, whichever is applicable.” Fla. Stat. § 456.053(5)(c)-(d). In determining whether a statute provides a private cause of action, the court must determine whether the statute purports to establish civil liability or “merely makes provision to secure the safety or welfare of the public[.]” Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla. 2003). In answering this question, the intent of the legislature should be the court’s primary consideration. Murthy v. N. Sinha Corp., 644 So. 2d 983, 985-986 (Fla. 1994). There also exists an assumption that the legislature does not create a statutory right absent some means of enforcing it, “for where a statute gives a right, there, although in express terms it has not given a remedy, the remedy which by law is properly applicable to that right follows as an incident.” Smith v. Piezo Tech. & Prof’I Adm’r, 427 So. 2d 182, 184 (Fla. 1983).
The language of Section 456.053(5)(d) clearly establishes a payor’s right to a refund, and the provision cannot rightfully be considered as a tool to ensure the public’s safety or welfare. Accordingly, Defendants’ motion to dismiss Count IV is DENIED. (emphasis ours)
Thus, as the district court noted, a closer reading of Fla. Stat. Section 456.053(5)(d) appears to permit plaintiffs to allege a private cause of action under the Florida PSRA to collect monies obtained in violation of the Florida PSRA.
Author: Andrew Feldman
Mr. Feldman represents professionals, corporations, health care providers, and health care marketers in government investigations and prosecutions throughout the United States. Mr. Feldman works tirelessly for his clients from the time an investigation begins until the time a jury renders a verdict.
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