Since 2016, the Office of the State Attorney for the Fifteenth Judicial Circuit of Florida (Palm Beach County, The Honorable David Aronberg, State Attorney) began significant investigations and prosecution of alleged violation of Florida’s Patient Brokering Act, which law prohibits: (A) paying for a referral; and/or (B) inducing patients to select a treatment provider by offering anything of value.
While there have been many arrests and prosecutions, the cases have ended up in plea deals. Until now.
We believe the first defendant not to accept a plea and to go to trial beginning this morning is the case of Robert Simeone, the owner of Epiphany’s Treatment Center.
The allegations appear to be payment to sober home providers for referrals of residents under the premise of payment of fees for Case Management services.
While the payment for a referral is against the plain letter of the law, payment for true, real, actual “Case Management” services is not, and which payments are not a disguise for referrals.
The question is, was a provider truly paying for Case Management services, or were payments simply labeled as “Case Management Fees” to effectively launder what were actually kickbacks for referrals?
As Simone’s defense attorney states in his Motion to Dismiss:
“The determinant issue as it relates to the charges here, in whether the case management agreements entered into between the Defendant and witnesses whom the PB SAO relies upon to support probable cause were truly for the provision of case management support services, or just a disguise for payments to induce the sober home operator/witness to refer residents to Epiphany’s.”
To answer that question, one must look at the evidence, and each prosecution stands on a case-by-case basis.
But the key issue being litigated today goes beyond that question.
In a decision which is likely to set the stage for all future prosecutions across the state is the question of “criminal intent” – does violation of the Patient Brokering Act only require payment for a referral and/or some action to induce a patient, or does that law require some form proof that there was a specific intention to violate the statute?
What if someone in good faith did not believe they were violating the statute through their actions, but it turns out that their actions violated the law?
For example, what if you believe the speed limit to be 75mph, you drive 75mph, and you intended to drive 75mph, but the actual speed limit is 65mph – did you break the law?
In large part, that is the legal issue at the heart of the Simeone prosecution this week, and part of Defendant’s Motion to Dismiss being heard likely today.
As stated in the Motion:
It must be acknowledged that indeed there did existing within the growing drug treatment industry certain treatment providers and sober home operators whose intent was not to provide quality healthcare, but instead to make money through insurance fraud, drug sales and prostitution. However, these so called “bad actors” constituted a small portion of the individuals operating businesses in the industry; and were dealt with by federal authorities. The arrests and prosecutions of others for patient-brokering based on the system of case management, including the one here, have struck at legitimate and well-intentioned actors whose only motivations were to operate in a legal manner to provide quality care.
No matter how the court rules, we expect appeals on this legal issue, so the law will not be settled for quite some time. However, in the meantime, the entire industry is holding its collective breath.