Tag Archives: kickback

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.

BREAKING NEWS – Google Reinstates Ads for Addiction Treatment Centers, With Pre-certification by LegitScript

Google will start accepting ads for addiction treatment centers again, Reuters reports. The company suspended the ads in September after The Verge reported that Google ads were being used to direct people to shady addiction treatment centers and away from legitimate facilities. Starting in July, treatment centers can run ads on Google but only after they’ve been vetted by LegitScript, a firm that also verifies online pharmacies.

Google told Reuters Monday it would resume accepting ads from U.S. addiction treatment centers in July, nearly a year after it suspended the lucrative category of advertisers for numerous deceptive and misleading ads.

According to the just-released revised advertising policy press release from Google:

In May 2018, Google will update the Healthcare and medicines policy to restrict advertising for recovery-oriented services for drug and alcohol addiction. This policy will apply globally, across all accounts that advertise addiction services.

Here are some examples of addiction services that will be restricted under this new policy:

  • Clinical treatment providers for drug and alcohol addiction, including inpatient, residential, and outpatient programs
  • Recovery support services for drug and alcohol addiction, including sober living environments and mutual help organizations
  • Lead generators and referral agencies for drug and alcohol addiction services
  • Crisis hotlines for drug and alcohol addiction

Outside the United States, ads for addiction services are currently not allowed.

In the United States, advertisers will need to be certified by LegitScript as addiction services providers before they can advertise through AdWords.

Not all drug and alcohol addiction services are eligible for LegitScript Certification.

Those not eligible for certification, such as sober homes and referral agencies, are not allowed to advertise for drug and alcohol addiction services on Google.

LegitScript charges a fee for processing and monitoring applicants, but fee waivers may be available in certain circumstances.

According to John Horton, CEO of LegitScript:

All of us at LegitScript are really excited about this new program. In many ways, it’s a natural extension of the work we’ve done for years to make the rogue internet pharmacy problem — a driver of prescription drug abuse and other problems — smaller. One of the most pernicious problems our country faces today is opioid addiction and other substance abuse. In the midst of this crisis, some opportunistic addiction treatment providers have been cashing in on patients’ recovery efforts and insurance billing opportunities. The worst of these have not only failed to provide treatment, but have encouraged ongoing drug abuse in patients trying to break the habit.

At the same time, addressing opioid addiction rates requires effective drug treatment strategies: patients and their families need to know which treatment providers are credible and legitimate, and which ones should be avoided. We hope that our program will help provide patients and our partners (like Google) information about which programs provide genuine treatment and which are, in essence, scams.

An important note about cadence: during the first three months, we’re going to intentionally take it slow. Irrespective of how many applications we receive, we’ll probably only certify about 20 to 30, simply so that we can make sure and get the process right. After that, we’ll ramp up the speed. (This goes into the “lessons learned” bucket from our existing healthcare merchant certification program.) This also works well with Google’s timeline, since they have indicated they will actually begin allowing these advertisers in July.

To learn more about LegitScript Certification and submit an application, visit LegitScript’s website.

US advertisers that are certified by LegitScript must also be certified by Google before they can begin advertising.

Advertisers with LegitScript Certification can request certification with Google starting in July, when the form is published.

Interest in treatment for abuse of opioids and other prescription drugs has soared in recent years amid what authorities have described as a nationwide epidemic.

Scammers found that Google ads were an easy way to defraud treatment-seekers in an industry in which regulations vary greatly by jurisdiction, authorities and patient advocacy organizations have said.

Google suspended alcohol and drug treatment advertising on search pages and millions of third-party apps and websites in the U.S. in September, the week after tech publication The Verge posted a lengthy story about scams. Google expanded the prohibition globally in January.

The move cut off at least $78 million annually worth of advertising in the U.S. alone, research firm Kantar Media estimated.

Most advertisers can buy ads through Google with few hurdles to clear. But Google has adopted additional vetting for locksmiths, garage-door repairers, drug makers and online pharmacies following public pressure. Google has said it also will begin seeking more documentation from political advertisers this year.

The addiction treatment rules apply to in-person facilities, crisis hotlines and support groups.

LegitScript will evaluate treatment providers on 15 criteria, including criminal background checks and license and insurance verification. They must also provide “written policies and procedures demonstrating a commitment to best practices, effective recovery and continuous improvement,” according to LegitScript, which will charge $995 upfront and then $1,995 annually for vetting.

The National Association of Addiction Treatment Providers and the National Center on Addiction and Substance Abuse support the standards, John Horton, chief executive of LegitScript, said in an interview last week.

A vetting process for sober-living houses and non-U.S. treatment centers has yet to be set, he said.

Horton acknowledged the “extra step” may frustrate rehab centers.

“It’s unfortunate, but this is one way the market gets cleaner and people get the help they deserve,” he said.

Marcia Lee Taylor, chief policy officer of the Partnership for Drug-Free Kids, to whom Google has donated advertising space, said earlier efforts to certify treatment services have failed because there was no “business incentive to answer all these invasive questions.”

Tying access to the world’s biggest online advertising system to certification makes applying worthwhile, Taylor said.

The new rules do not affect free business listings on Google Maps, which also have been susceptible to fraud. Google said it is continuously developing ways to combat Maps spammers.

More about this new model will be part of my presentation “Public Policy and the Law of Marketing Treatment Programs” at the 2nd Annual Treatment Center Executive & Marketing Retreat hosted by the Institute for the Advancement of Behavioral Healthcare in Hilton Head, SC, April 30 – May 1, 2018.