SB956.DOC

SECTION 1. Chapter 708, Hawaii Revised Statutes, is amended by adding a new section to part VII to be appropriately designated and to read as follows:

"§708- Patient brokering. (1) A person commits the offense of patient brokering if the person:

(a) Offers, pays, solicits, or receives any commission, bonus, rebate, kickback, or bribe in any form, directly or indirectly, or engages in any split-fee arrangement in connection with the referral of patients to or from a health care provider or a health care facility; or

(b) Offers, pays, solicits, or receives any commission, bonus, rebate, kickback, or bribe in any form, directly or indirectly, or engages in any split-fee arrangement in connection with the provision or acknowledgement of treatment from a health care provider or a health care facility.

(2) As used in this section:

"Health care facility" means any private or public program, institution, place, building, agency, or portion thereof, whether organized for profit or not, that is used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care to any person or persons; provided that a "health care facility" shall include but not be limited to facilities commonly referred to as hospitals, extended care and rehabilitation centers, nursing homes, skilled nursing facilities, intermediate care facilities, care homes, hospices, kidney disease treatment centers including freestanding hemodialysis units, outpatient clinics, organized ambulatory health care facilities, emergency care facilities and centers, home health agencies, health maintenance organizations, mental health facilities, drug and alcohol treatment facilities, and others providing similarly organized services regardless of nomenclature.

"Health care provider" means a person who is licensed, certified, or otherwise authorized or permitted to provide medical or other health services as defined in title 42 United States Code section 1395x(s), to act as a provider of services as defined in title 42 United States Code section 1395x(u), or to otherwise administer health care in the ordinary course of business or practice of a profession.

"Health care provider network entity" means a corporation, partnership, or limited liability company owned or operated by two or more health care providers and organized for the purpose of entering into agreements with health insurers, health care purchasing groups, or the medicare or medicaid programs.

"Health insurer" means any insurer licensed to provide accident or health and sickness insurance pursuant to article 431:10A, long term care insurance pursuant to article 431:10H, a mutual benefit society or a fraternal benefit society authorized to provide benefits pursuant to chapter 432, or a health maintenance organization established pursuant to chapter 432D.

(3) Patient brokering is a class C felony.

(4) This section shall not apply to:

(a) Any discount, payment, waiver of payment, or practice not prohibited by title 42 United States Code section 1320a-7b(b) or its related federal regulations;

(b) Any payment, compensation, or financial arrangement within a group practice; provided that the payment, compensation, or financial arrangement does not involve persons who are not members of the group practice;

(d) Commissions, fees, or other remuneration lawfully paid to a licensed insurance producer;

(e) Reimbursements by an insurer for goods and services provided in the course of health care, mental health care, or substance abuse treatment pursuant to a health benefit plan;

(f) Payments for goods and services provided in the course of health care, mental health care, or substance abuse treatment pursuant to a contract between a health insurer, health care purchasing group, or the medicare or medicaid program and a health care provider, a health care facility, or a health care provider network entity;

(g) Otherwise lawful insurance advertising gifts;

(h) Commissions or fees paid to a nurse registry for referring persons providing health care services to clients of the nurse registry;

(i) Payments by a health care provider or health care facility for participation in an information service that provides information about health care providers or health care facilities upon request and without charge to consumers to facilitate consumer selection of health care providers and health care facilities; provided that the information service:

(i) Does not attempt to use standard questions for solicitation of consumer criteria or any other means to steer or lead a consumer to any particular health care provider or health care facility;

(ii) Does not provide or represent itself as providing diagnostic services, counseling services, assessments of illness or injury; make promises of cure; or guarantee the provision of treatment;

(iii) Does not provide or arrange for transportation of a consumer to or from a health care provider or facility; and

(iv) Charges and collects fees for participation from health care providers and health care facilities according to a fee schedule that is set in advance, consistent with the fair market value for similar information services, and not based on the potential value either of particular patients to the health care provider or health care facility or of the goods and services provided to the consumer by the health care facility.

(5) The provisions of this section apply in addition to any other civil, criminal, or administrative action provided by law. Notwithstanding the existence or pursuit of any other remedy, the attorney general may maintain an action for injunctive relief or other process to enforce this section."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect on July 1, 2011.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	956
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII