Palm Beach Court Requests Clarification on Question of “Criminal Intent” Necessary in Patient Brokering Act

By: Jeffrey Lynne July 20, 2018 2:31 am

Time to read: 5 Minutes

Palm Beach Court Requests Clarification on Question of “Criminal Intent” Necessary in Patient Brokering Act

Palm Beach Circuit Court Judge Joseph G. Marx issued a somewhat confusing non-final Order this morning in the closely-watched case of State v. Robert Simeone, regarding whether the State must prove that the Defendant had the required intent to violate the Patient Brokering Act when paying case management fees to the sober home operator where his patients resided.

As I reported back on July 9th,  the Defendant moved to dismiss the prosecution on the basis that he entered into agreements to pay fees to sober home operators to provide case management services for his client, and not for referrals.

The State responded, in part, that even if the Defendant was paying for case management services, if those payments also induced the sober home provider to make referrals to the Defendant, then that violates the prohibitions in s. 817.505, Florida Statutes, the Patient Brokering Act.

But what was the Defendant’s intention?  What level of “intent” does the State have to prove?

The Court today said “we don’t know.”

The State is claiming that the Patient Brokering Act is a “general intent” statute, meaning the level of criminal intent that the State must prove is that the act occurred and the Defendant intended to take the action.

The Defendant is asserting that the State must prove more; that the State must prove that the Defendant specifically intended to pay for a referral or intended to use the business arrangement between the parties as a disguise to cover up a payment for a referral.

The State believes that it must only prove that the case management arrangement was either established or continued in order to keep the referrals flowing, which is a critical distinction; that if any purpose of that payment or benefit was to induce a referral or continue a de-facto referral relationship, that would be a violation of the Patient Brokering Act.

Stated differently, the State appears to be asserting (as cited in the motions and responses) that, if and when those case management fees stopped being paid (i.e., the Defendant no longer wanted the sober home operator to provide case management services) that the referrals would end; that both parties understood that; and therefore the case management relationship continued for purposes of continuing the referrals – the case management arrangement with the sober home provider would have ended if the referrals ended; and that this establishes the required level of “intent”  by the Defendant.

The Defense has responded that the State must prove (and suggests the State will be unable to prove) that this was the actual, specific intention of the Defendant – to pay for a referral – and that the State must prove that the Defendant specifically intended for the case management arrangement to be a disguise for referral payments.  The pleadings suggest that the Defendant believed, in good faith, he was only paying for case management services, and if the sober home provider chose to refer its residents to Defendant’s treatment center, that was only the byproduct of a professional, arm’s length business relationship that developed through time and that there was no “quid pro quo.”

The Court’s Order seems to suggest, it does know the answer of what “criminal intent” standard to apply and wants a higher court to chime in.

If the “general intent” standard is ultimately to be applied, the State would only need to prove the Defendant engaged in the case management services agreement with the sober home provider, in part, to obtain referrals, even if there were other legal aspects of that business relationship.

If the “specific intent” standard is the one that the courts ultimately rule upon, then the Defendant’s state of mind does come into play and the State would have to introduce either direct or circumstantial evidence of the Defendant’s criminal intent to provide a benefit to the sober home specifically in exchange for referrals.

The Court today said, it is not sure, and needs a higher court to chime in.

The answer may not come for quite some time.

Jeffrey Lynne

Jeffrey Lynne is a partner at Beighley, Myrick, Udell, Lynne + Zeichman, P.A. in both the firm’s Land Use & Zoning and Governmental Affairs & Regulated Industries practice groups. He also chairs the Firm’s Behavioral Healthcare Practice Group and represents clients with local, state and federal zoning, permitting, licensing, and regulatory matters. Mr. Lynne received his undergraduate education at the University of Florida and attended law school at the University of Miami (1997).

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