Florida/Georgia Personal Injury & Workers Compensation

...he common law.” Thornber, 568 So.2d at 918 . None of the statutes featured in the Amended Complaint explicitly precludes an insurer from bringing a claim for common, law fraud. 20 In fact, some expressly provide the opposite. See, e.g., Fla. Stat. § 817.505 (7) (“The provisions of this section are in addition to any other civil, administrative, or criminal actions provided by law and may be imposed against both corporate and individual defendants.”)- Nor-is any statute “so repugnant to the common law that the two cannot coexist.” Thornber, 568 So.2d at 918 ....

...�� Am. Compl. ¶ 163. Essentially, State Farm argues that it “owed absolutely nothing for Defendants’ services,” Opp. at 1329-30, because such services are “the product of an arrangement prohibited by Florida Statutes §§ 395.0185, 456.054, 817.505, 502.201 et....

...submitted during the pendency of this litigation for services rendered pursuant to the Unlawful Referral Agreement, as alleged herein, are not owed because they are the product of an arrangement prohibited by Florida Statutes §§ 395.0185, 456.054, 817.505, 502.201 et....

...and Triana joined the Calhoun Motion (ECF No. 63), and (2) as Calhoun Defendants note, “the two claims are essentially identical,” Calhoun Motion at 8 n.2. . Specifically, Plaintiff asserts that Defendants’ conduct violates Florida Statutes §§ 817.505 (Patient Brokering Statute), 456.054 (Anti-Kickback Statute), 395.0185 (Anti-Rebate Statute) and 817.234 (Insurance Fraud)....

...(2) conspiracy to commit racketeering, in violation of section 895.03(4), Florida Statutes (2002); (3-55) Medicaid provider fraud, in violation of section 409.920(2)(a), Florida Statutes (2002); (56-129) split-fee patient brokering, in violation of section 817.505(1)(b), Florida Statutes (2002); and (130) white collar crime, in violation of section 775.0844, Florida Statutes (2002)....

...The Fifth District affirmed the trial court's decision that the Medicaid provider fraud statute, § 409.920(2)(a), is unconstitutional. Rubio, 917 So.2d at 392. The Fifth District found that the trial court erred in concluding that the patient brokering statute, § 817.505, is unconstitutional....

...190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983)). We disapprove the decision of the Third District in Wolland to the extent that it is in conflict with this decision. II. Constitutionality of Patient Brokering Statute In this issue, the defendants argue that section 817.505, Florida Statutes (2002), which prohibits "patient brokering," is unconstitutional because it (1) is vague; (2) lacks a mens rea requirement; and (3) fails to impose a mens rea requirement of willfulness. Counts 56-129 charged the defendants with split-fee patient brokering, in violation of section 817.505(1)(b)-(c)....

...any act in furtherance of the arrangement to refer patients. [2] The defendants, in their motion to strike these charges, argued that the seventy-three counts were multiplicitous because the Legislature's use of the words "any" and "arrangement" in section 817.505 meant that charges could only be brought per arrangement and not per act committed in that arrangement. Again, no evidence has yet been presented or considered because this case is an appeal of an order granting the defendants' motion to dismiss prior to trial. The trial court dismissed the charges as multiplicitous because the court found that section 817.505(1)(b) makes it a crime to "engage in any split-fee arrangement" regardless of the number of fee-splitting instances which occur; thus, "charging each fee-splitting instance as a separate and distinct crime results in a multiplicitous information." Order at 10....

...f DUI traffic violations. The a/any test should not be applied to create an ambiguity where none exists and then to reach a result contrary to clear legislative intent. Id. at 1187-88. Thus, in order to determine the intended unit of prosecution for section 817.505, we must look at the overall statutory scheme and language of the statute....

...The statute's express words indicate that it is the engaging in fee-splitting in return for referrals of patients that is prohibited. We conclude that the Fifth District's analysis misses the word "engage" in focusing on "arrangement" and holding that only one charge can be brought in this case. Section 817.505 does not simply prohibit split-fee arrangements but prohibits engaging in those arrangements....

...Whether on those dates the defendants actually did take part in a split-fee arrangement in return for the referral of patients is a question for the trier of fact. We reverse the Fifth District's decision on this issue and hold that the information charged the correct units of prosecution, in accordance with section 817.505. IV. Predicate Offenses The trial court struck counts 1 (racketeering), 2 (conspiracy to commit racketeering), and 130 (white collar crime) from the information, finding that section 817.505 was not a proper predicate on which the State could charge racketeering and white collar crime....

...Florida Statutes. B. White Collar Crime The defendants raised similar challenges to count 130 in the information, which charged the defendants with violating section 775.0844, the White Collar Crime Victim Protection Act. The defendants argued that section 817.505 was not a proper predicate upon which to base the white collar crime charge....

...y 3, 2001 . . . did refer and/or provide patients to Bonilla's Medical and Dental center, and/or Anamaria Bonilla Mendez and/or Sonia Maria Guzman in exchange for an approximate 50% split-fee, less operating expenses, in violation of Florida Statute 817.505(b)." Count 57 then states that defendant Rubio, "on or about between July 4, 2001 and July 10, 2001 . . . did refer and/or provide patients to Bonilla's Medical and Dental center, and/or Anamaria Bonilla Mendez and/or Sonia Maria Guzman in exchange for an approximate 50% split-fee, less operating expenses, in violation of Florida Statute 817.505(b)."

...nt, itself, impermissibly provided for payment of a percentage of the revenue the management services and practice enhancement would generate and, thus, constituted an indirect method of fees for patient referral in violation of sections 458.331 and 817.505, Florida Statutes (2001)....

...Agency for Health Care Admin., 669 So.2d 1160 (Fla. 5th DCA 1996)(holding that salary based on a percentage of previous year's revenue and a year-end bonus based on current year's revenues would each be in violation of the prohibition on fee-splitting). Florida Statutes §§ 458.331(1)(i) and 817.505(1)(a) prohibit any split fee arrangement....

...medical provider is: paying or ... engaging in any split fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, "for patients referred to providers" of health care goods and services. Section 817.505(1)(a), provides it is unlawful for any person, including a health care provider, to: Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, i...

...The board noted that those cases did not involve any obligation for any activity "that could be construed as providing more extensive referrals of patients." Bakarania, 20 FALR at 398. Furthermore, those cases pre-dated that enactment of the Patient Brokering Act at section 817.505....

...y to plaintiffs. Interest and motive of a witness are proper subjects for cross-examination. Id. § 608.5, at 465. The cross-examination was properly allowed. Plaintiff contends that it is a crime for a physician to pay for the referral of patients, § 817.505, Fla....

...ngaging in ... any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care, goods and services ... Further, the Order notes that section 817.505(1)(a) makes it unlawful for any person, including a health care provider, to "offer or pay any commission, bonus, rebate, kickback or bribe, directly or inadvertently, in cash or in kind, or engage in any split-fee arrangement, in any...

...utes. Counts 3-55 charged various defendants with Medicaid provider fraud in violation of section 409.920(2)(a), Florida Statutes. Counts 56-129 charged various defendants with patient brokering by engaging in a split-fee arrangement in violation of section 817.505, Florida Statutes....

...� the anti-kickback provision in subsection (2)(e) — was preempted under the Supremacy Clause. The defendants also filed a motion to strike the fee-splitting arrangement incidents from counts 1, 2 and 130 on the basis the patient brokering statute (section 817.505) does not meet the statutory definitions of racketeering activity or white collar crime. In that motion, the defendants also sought dismissal of counts 56-129 on two grounds: 1) the state has improperly charged multiple counts of patient brokering and 2) section 817.505(1)(a) is unconstitutional because it is vague and criminalizes any fee-splitting arrangement without requiring any form of mens rea....

...The trial court agreed with the defendants and struck the predicate incidents from counts 1, 2 and 130, dismissed counts 3-55 on the ground that 409.920(2)(a) is unconstitutional and dismissed counts 56-129 on the grounds that they are multiplicitous and section 817.505(1)(b) is unconstitutional....

...We agree with the trial court that the prior definition of "knowingly" in section 409.920(1)(d) rendered section 409.920(2)(a) unconstitutional and counts 3-55 were properly dismissed. Patient Brokering The defendants were charged in counts 56-129 with patient brokering in violation of section 817.505. Section 817.505 provides in part as follows: 817.505....

...on, or other business entity, who violates any provision of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The trial court dismissed the patient brokering charges on the basis that section 817.505(1)(b) is unconstitutional. We are hampered in our analysis of this issue because the trial court failed to state its reasons for doing so. On appeal, the defendants argue section 817.505(1)(a) [5] is unconstitutional because it is: 1) void for vagueness, 2) lacks any form of mens rea, 3) does not require "willfulness" and 4) violates the First Amendment....

...dinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The defendants argue that on its face, section 817.505 fails to define the specific crime charged in this case with sufficient precision so that ordinary people can understand what conduct is prohibited....

...t value of the services rendered. In such a situation, there is a real and *394 obvious danger of convicting individuals who are engaging in apparently innocent activity. In discussing the defendants' multiplicity argument, the trial court concluded section 817.505 is not vague....

...The requirement that the split-fee arrangement be for the purpose of inducing or in return for the referral of patients distinguishes this arrangement from lawful arrangements and provides sufficient notice of the type of arrangement that is prohibited. 2. Mens Rea. The defendants contend that section 817.505(1) is unconstitutional because it has no mens rea or intent element....

...1112. See also United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (conviction for shipping adulterated and misbranded drugs affirmed even though statute did not require awareness of wrongdoing). The defendants contend that section 817.505 cannot be compared to these public welfare offenses....

...& White, P.A. v. Friedenstab, 831 So.2d 692 (Fla. 4th DCA 2002), rev. denied, 874 So.2d 1191 (Fla.2004) (service agreement between physician and medical management company was an illegal fee splitting arrangement). Finally, the defendants claim that section 817.505 conflicts with Board of Dentistry Rule 64B5-17.013(4)....

...The trial court expressly found that "[v]arious combinations of the defendants referred or provided patients to one another in return for a split of the resulting fee. " (emphasis added). We conclude this conduct clearly constitutes split-fee patient brokering and is proscribed by the plain and ordinary language of section 817.505, as well as Board of Dentistry Rule 64B5-17.013(4)....

...The defendants contend that "willfulness" is required under Harden and without that requirement, the statute is unconstitutional. In Harden, the court held the anti-kickback provision of 409.920 was unconstitutional in part because it did not have a "willfulness" requirement. The defendants contend that section 817.505 is nothing more than a disguised anti-kickback statute and likewise must have a willfulness requirement. According to Wolland, Harden was based primarily on the lack of a "safe harbor" in section 409.920. In contrast, section 817.505 has a safe harbor. Section 817.505(3)(a) specifically provides that the statute does not apply to any payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b). Unfortunately for the defendants, payment schemes for the referral of patients are prohibited under 42 U.S.C. s. 1320a-7b(b). [6] Thus, Harden, as limited by Wolland, does not support striking down section 817.505. 4. First Amendment. The defendants contend section 817.505(1)(b) is unconstitutional because it *396 criminalizes commercial speech without requiring any intent to defraud....

...ss for the purpose of making motor vehicle tort claims or claims for PIP benefits, violated the First Amendment because it prohibited solicitation regardless of whether fraudulent intent was involved. In contrast to the statute at issue in Bradford, section 817.505 does not inhibit a person's right generally to solicit business. Section 817.505 merely prohibits the solicitation and referral of patients in return for payment, which seems to us to be a valid legislative objective, and does not prohibit routine advertising and marketing. Unlike section 409.920, section 817.505 does not pose the same constitutional concerns....

...edicaid or federal programs. And finally, unlike the filing of a false statement, it seems unlikely that a person could negligently or inadvertently "engage" in a split-fee arrangement. For these reasons, the defendants' constitutional challenges to section 817.505 should have been rejected by the trial court. Multiplicity The defendants were charged in counts 56-129 with engaging in split-fee arrangements in violation of section 817.505(1)(b) and (c): (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engag...

...lature is clear that each discrete act constitutes an allowable unit of prosecution. Bautista; Marin. However, use of the adjective "any" indicates an ambiguity that may require application of the rule of lenity. Bautista; Wallace; McKnight. *398 In section 817.505, the Legislature has prohibited "any split fee arrangement." The word "arrangement" is commonly defined as "an informal agreement or settlement ..." Merriam-Webster On-line Dictionary. By its plain wording, section 817.505 would seem to apply only to the agreement to refer patients to the dentists in return for a split of the fees....

...Florida Statutes: * * * 29. Chapter 817, relating to fraudulent practices, false pretenses, fraud generally, and credit card crimes. (emphasis added) § 895.02(1)(a)(29), Fla. Stat. The state relied on the patient brokering incidents in violation of section 817.505 as the basis for the racketeering charges. Since section 817.505 does not require proof of fraudulent conduct, the trial court *399 concluded the patient brokering incidents would not qualify as racketeering activity....

...628, 160 L.Ed.2d 463 (2004); Hechtman v. Nations Title Ins. of New York, 840 So.2d 993 (Fla.2003). Construing the "relating to" language as merely referring to the chapter already listed would render that language superfluous. We also decline to read any fraud element into section 817.505....

...Chapter 817 is entitled "Fraudulent Practices" and contains numerous sections, many of which require proof of fraud or intent to defraud. However, the chapter also contains other sections, such as patient brokering, which do not require fraud or intent to defraud. [8] The mere fact that section 817.505 was included in the fraudulent practices chapter does not mean the Legislature intended fraud to be an element of the statute....

...titution"). White Collar Crime In count 130, the defendants were charged with violating Florida's White Collar Crime Victim Protection Act, section 775.0844, by committing at least two white collar crimes, including patient brokering in violation of section 817.505....

...Conclusion We affirm the striking of the patient brokering incidents from counts 1, 2 and 130 as they do not relate to fraud. We affirm the dismissal of counts 3-55 on the basis that former section 409.920(1)(d) rendered section 409.920(2)(a) unconstitutional. Even though we uphold the constitutionality of section 817.505, we affirm the dismissal of counts 56-129 as multiplicitous....

...cy thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title. [5] The information did not charge the defendants with violating section 817.505(1)(a). Nevertheless, sections 817.505(1)(a) and 817.505(1)(b) are similar and both prohibit engaging in any split-fee arrangement involving patient referrals....

...In that regard, we note that the 2001 amendment to section 627.736, adding the provision that neither an insured nor an insurer was required to pay the claim of a broker, may have been designed to prevent the sort of evils presented in Medical Management. See § 627.736(5)(b)(1), Fla. Stat. (2001); cf. § 817.505, Fla....

...party, there is no genuine issue for trial, and summary judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574 , 587, 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). III. APPLICABLE LAW A. Patient Brokering Statute, Fla. Stat. § 817.505 (2012) The Patient Brokering Statute prohibits offering or paying any "commission, bonus, rebate, kickback, or bribe, directly or indirectly in cash or in kind" or engaging "in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility." Fla. Stat. § 817.505 (1)(a)....

...It is also unlawful for any person to "[s]olicit or receive any commission, bonus, rebate, kickback, bribe, directly or indirectly, in cash or in kind" or engage in any "fee-split arrangement" in return for referring patients to or from a health care provider. Id. § 817.505(1)(b). It is also unlawful to aid, abet, advise, or otherwise participate in the conduct prohibited by the statute. Id. § 817.5050(1)(d)....

...services or items, to any person as an incentive or inducement to refer patients for past or future services or items. Id. § 456.054(1). "Violations of [ section 456.054 ] shall be considered patient brokering and shall be punishable as provided in s. 817.505." Id....

...2016) (denying summary judgment on issue of whether defendants paid or obtained remuneration in exchange for referrals and, if so, whether the conduct was willful); State v. Rubio , 967 So.2d 768 , 779 (Fla. 2007) (while addressing the constitutionality of the Patient-Brokering Statute, Section 817.505, the Court stated that "[w]hether on those dates the defendants actually did take part in a split-fee arrangement in return for the referral of patients is a question for the trier of fact")....

...s payment in full. TAC, ¶168. The Patient Brokering and Anti-Kickback Statutes prohibit receipt of any kind of payment "directly or indirectly" for mere referral of a patient as well as any split-fee arrangement "in any form whatsoever." Fla. Stat. § 817.505 (1)(b)....

...nsurance agreement"); Med. Mgmt. Group of Orlando, Inc. v. State Farm Mut. Auto. Ins. Co. , 811 So.2d 705 , 706 (Fla. Dist. Ct. App. 2002) (affirming summary judgment ruling that defendant was not obligated to pay MRI charges that were illegal under section 817.505, and explaining "we agree with the trial judge that the arrangement is nothing more than a fee-splitting scheme to compensate for MRI referrals prohibited by section 817.505"); see also NuWave Diags., Inc....

...97-09174, 6 Fla. L. Weekly Supp. 522a (Broward County Ct. May 7, 1999) ("Any such split-fee arrangement-especially the very disproportionate one involved in the present case-is against the public policy of this state and is also specifically prohibited by section 817.505.")....

...Specifically, United alleges that defendants engaged in an extensive advertising and marketing campaign, netting dozens of chiropractors who were paid between $4000 and $5000 per MUA patient referral, all in violation of Florida’s Patient Brokering Act, Fla. Stat. § 817.505 and Anti-Kickback Statute, Fla....

...under his insurance policy and an assignment from Premier of its right to bill a commercially reasonable fee. We agree with the trial judge that the arrangement is nothing more than a feesplitting scheme to compensate for MRI referrals prohibited by section 817.505, Florida Statutes....

...not bill for services provided by Dr. Floyd since he was not their employee. As a secondary argument, Nationwide asserted that Regional's billing practice resulted in an illegal fee split or brokering arrangement in violation of sections 456.054 and 817.505(1), Florida Statutes....

...e is more economical [sic] swift and makes more sense, rather than requiring the filing of two forms, one filed by the entity providing the technical component and one filed by the person or entity providing the professional component. Further, F.S. § 817.505 does not make it unlawful for Axcess MRI to pay an independent contractor to provide a professional component....

...r, pay, solicit or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients. (3) Violations of this section shall be considered patient brokering and shall be punishable as provided in s. 817.505. Section 817.505 prohibits patient brokering and states: (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in...

...including Florida’s Anti-Kickback Statutes (§§ 456.054 and 395.0185, Fla. Stat. (2009)); the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)); Medicare Hospital Condition of participation; Discharge planning (42 C.F.R. § 482.43); Florida’s Patient Brokering Act (§ 817.505, Fla....

...Warner, Assistant Attorney General, West Palm Beach, for appellant. Bruce A. Zimet of Bruce A. Zimet, P.A., West Palm Beach, for appellee. WARNER, J. The State appeals the dismissal of four counts of an information charging appellee Desimone with violations of section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act), which prohibits payments to an entity or person for referring patients to a health care provider....

...We hold that the trial court erred by holding an evidentiary hearing to determine disputed issues of fact. We also conclude, based upon the allegations in the information, that the statute allowed the State to bring these multiple charges because the unit of prosecution pursuant to section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. Therefore, we reverse.  The Patient Brokering Act The State charged appellee Desimone with thirteen counts of violating section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act). That section provides: (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission,...

...r, to induce the referral of patients or patronage to or from a health care provider or health care facility[.] Id. In State v. Rubio, 967 So. 2d 768 (Fla. 2007), our supreme court determined the allowable unit of prosecution under section 817.505(1)(b), which prohibits receiving payment for patient referrals....

...rangements . . . . [I]n accordance with the plain language of the statute, the State is not limited to prosecuting only the arrangement to refer patients.” Id. at 778. The question presented in this case is how the statute should be applied in section 817.505(1)(a), when a health care provider pays multiple commissions to different parties for referrals of the same patients on the same dates. Facts Safe Harbour Recovery Treatment Center (Safe Harbour...

...Rizzo’s corporations. From this order, the State appeals. Analysis The State first contends that the trial court erred by holding an evidentiary hearing on Desimone’s motion to dismiss to determine the unit of prosecution for section 817.505(1)(a), Florida Statutes (2016). Desimone filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b), arguing that the court should dismiss for multiplicity the several counts of the information....

...patients on the same days can be charged as different violations of the Patient Brokering Act, or whether such payments constitute only one violation for each day. We conclude that such payments may be separately charged, because the correct unit of prosecution pursuant to section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. The Fifth Amendment double jeopardy clause protects against multiple punishments for the same offense....

...3d at 48 (same). “[I]t is a distinguishable discrete act that is a separate violation of the statute.” McKnight, 906 So. 2d at 371. In Rubio, the supreme court addressed the question of the unit of prosecution and multiplicity in connection with section 817.505(1)(b) which makes it unlawful for a person to solicit or receive “any commission ....

...rangement to refer patients.” Id. The court considered the application of the “a/any” test to determine whether the Legislature intended to allow multiple offenses or a singular unit of prosecution. Id. at 777. The use of the word “any” in section 817.505(1)(b) had led the Fifth District to affirm the trial court’s dismissal of charges because the Fifth District held it could “discern no intent by the Legislature to criminalize each and every act done pursuant to the agreement.” Id....

...ed to discern the intended unit of prosecution. Rubio, 967 So. 2d at 777 (quoting Bautista v. State, 863 So. 2d 1180, 1183 (Fla. 2003)). Rubio 6 concluded that to determine the intended unit of prosecution for section 817.505, it had to “look at the overall statutory scheme and language of the statute.” Id....

...activities. Whether on those dates the defendants actually did take part in a split-fee arrangement in return for the referral of patients is a question for the trier of fact. Id. at 779. The court then held that the unit of prosecution under section 817.505(1)(b) constituted each time the patients were referred to the health care providers....

...patient referrals on the same dates. We find that the trial court, however, applied a mechanistic analysis, rather than Rubio’s “common sense” analysis. The trial court focused on the word “engage” with respect to a split-fee arrangement as used in both sections 817.505(a) and (b) as the Rubio court did....

...consideration of the “whole subsection” and “look[ing] at the overall statutory scheme and language of the statute.” 967 So. 2d at. at 778. Here, if the payments are considered commissions or kickbacks, rather than a split fee arrangement, then section 817.505(a) provides that it is a violation to pay “any commission” or “kickback.” See 817.505(1)(a), Fla. 7 Stat....

...2d at 371 (quoting Bautista, 863 So. 2d at 1186). When determining the “unit of prosecution,” the focus is directed to “the aspect of criminal activity that the Legislature intended to punish.” Rubio, 967 So. 2d at 777 (quoting McKnight, 906 So. 2d at 371). Section 817.505(1)(a), unlike section 817.505(1)(b) at issue in Rubio, is directed at the payer or offeror who “induce[s]” the referral of patients or patronage. The overall evil is patient brokering, but specifically as to Desimone, as a health care provider, the evil to be corrected pursuant to section 817.505(a) is paying third parties to refer patients to the health care provider....

...and to United in return for referrals. Thus, even though the State conceded that the payments were for the same patients, Desimone paid each player, Rizzo and United, to induce each player to refer to Desimone/Impact Q patients for lab testing. Section 817.505(1)(a) prohibits Desimone from inducing referral or patronage, which inducement is made by each payment, on each date, to Rizzo or United. Because the focus is on the payor in section 817.505(1)(a), not the payee as in Rubio, the fact that the payments are for the referral of the same patients for the same lab tests is not material....

...If a provider has to pay two parties to obtain patient referrals, the provider is twice entering into deals to broker the patients. Logically, any person, health care provider, or facility making several deals to induce the same referrals or patronage is engaging in more prohibited behavior pursuant to section 817.505(1)(a) than the person, health care provider, or facility which makes only one deal to induce referrals or patronage. For that reason, the 8 “common sense” unit of prosecution under section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. Conclusion For the foregoing reasons, the unit of prosecution under section 817.505(1)(a), Florida Statutes (2016), is each payment made to induce the referral of patients or patronage....

...State Farm alleges that such services were unlawfully rendered, therefore relieving both the patients and State Farm of responsibility for the costs of these services under Florida Statute Section 627.736(5)(b)(l)(b), based on Defendants’ alleged violations of the Patient Brokering Act (Fla.Stat. § 817.505), the Patient Self-Referral Act (Fla.Stat....

...1-3-l^f) But the issues raised in State Farm’s complaint do not implicate the regulation of such referral services. Counts I-IV rely on alleged violations of state statutes and rules that govern referral and advertising practices of medical and chiropractic care providers ( Fla. Stat. §§ 817.505 , 456.053, 456.054, and 460.413(d), (f), and (Z)); Fla....

...Specifically, Plaintiffs allege that Quality's billing records falsely represent that Quality was operating in compliance with Florida's Health Care Clinic Act, Fla Stat. §§ 400.900- 400.995 ("Clinic Act"), Florida's Patient Brokering Act, Fla Stat. § 817.505 ("Patient Brokering Act"), and Florida's Anti-Kickback Statute, Fla Stat....

...5th DCA 2002) ; Federated Nat. Ins. Co. v. Physicians Charter Services , 788 So.2d 403 (Fla. 3d DCA 2001) ; Motion X Ray, Inc. v. State Farm Mut. Auto. Ins. Co. , 10 Fla. L. Weekly Supp. 346a (Fla. Orange Cty. Court September 3, 2002); see also Fla. Stat. § 817.505 (1)(b) ("It is unlawful for any person, including any health care provider or health care facility, to: ......

...ING WARNER, J. We deny the appellee’s motion for rehearing, vacate our prior opinion, and substitute the following in its place. The State appeals the dismissal of four counts of an information charging appellee Desimone with violations of section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act), which prohibits payments to an entity or person for referring patients to a health care provider....

...We hold that the trial court erred by holding an evidentiary hearing to determine disputed issues of fact which were for the jury to determine. We also conclude, based upon the allegations in the information, that the statute allowed the State to bring these multiple charges because the unit of prosecution pursuant to section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. Therefore, we reverse. The Patient Brokering Act The State charged appellee Desimone with thirteen counts of violating section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act). That section provides: (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission,...

...er, to induce the referral of patients or patronage to or from a health care provider or health care facility[.] Id. In State v. Rubio, 967 So. 2d 768 (Fla. 2007), our supreme court determined the allowable unit of prosecution under section 817.505(1)(b), which prohibits receiving payment for patient referrals....

...arrangements . . . . [I]n accordance with the plain language of the statute, the State is not limited to prosecuting only the arrangement to refer patients.” Id. at 778. The question presented in this case is how the statute should be applied in section 817.505(1)(a), when a health care provider pays multiple commissions to different parties for referrals of the same patients on the same dates. Facts 2  Safe Harbou...

...Rizzo’s corporations. From this order, the State appeals. Analysis The State first contends that the trial court erred by holding an evidentiary hearing on Desimone’s motion to dismiss to determine the unit of prosecution for section 817.505(1)(a), Florida Statutes (2016). Desimone filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b), arguing that the court should dismiss for multiplicity the several counts of the information....

...hearing to determine the issues” regarding whether the defendant involuntarily waived his immunity). This case does not fall into any of those categories. On a motion to dismiss, the supreme court in Rubio determined de novo the unit of prosecution as to section 817.505(1)(b), Florida Statutes....

...patients on the same days can be charged as different violations of the Patient Brokering Act, or whether such payments constitute only one violation for each day. We conclude that such payments may be separately charged, because the correct unit of prosecution pursuant to section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. The Fifth Amendment double jeopardy clause protects against multiple punishments for the same offense....

...3d at 48 (same). “[I]t is a distinguishable discrete act that is a separate violation of the statute.” McKnight, 906 So. 2d at 371. In Rubio, the supreme court addressed the question of the unit of prosecution and multiplicity in connection with section 817.505(1)(b) which makes it unlawful for a person to solicit or receive “any commission ....

...rangement to refer patients.” Id. The court considered the application of the “a/any” test to determine whether the Legislature intended to allow multiple offenses or a singular unit of prosecution. Id. at 777. The use of the word “any” in section 817.505(1)(b) had led the Fifth District to affirm the trial court’s dismissal of charges because the Fifth District held it could “discern no intent by the Legislature to criminalize each and every act done pursuant to the agreement.” Id....

...Instead, the court stated a “common-sense approach” should be followed to discern the intended unit of prosecution. Rubio, 967 So. 2d at 777 (quoting Bautista v. State, 863 So. 2d 1180, 1183 (Fla. 2003)). Rubio concluded that to determine the intended unit of prosecution for section 817.505, it had to “look at the overall statutory scheme and language of the statute.” Id....

...activities. Whether on those dates the defendants actually did take part in a split-fee arrangement in return for the referral of patients is a question for the trier of fact. Id. at 779. The court then held that the unit of prosecution under section 817.505(1)(b) constituted each time the patients were referred to the health care providers....

...patient referrals on the same dates. We find that the trial court, however, applied a mechanistic analysis, rather than Rubio’s “common sense” analysis. The trial court focused on the word “engage” with respect to a split-fee arrangement as used in both sections 817.505(a) and (b) as the Rubio court did....

...consideration of the “whole subsection” and “look[ing] at the overall statutory scheme and language of the statute.” 967 So. 2d at 778. Here, if the payments are considered commissions or kickbacks, rather than a split fee arrangement, then section 817.505(a) provides that it is a violation to pay “any commission” or “kickback.” See § 817.505(1)(a), Fla....

...When determining the “unit of prosecution,” the focus is directed to “the aspect of criminal activity that the Legislature intended to punish.” Rubio, 967 So. 2d at 777 (quoting McKnight, 906 So. 2d at 371). 8  Section 817.505(1)(a), unlike section 817.505(1)(b) at issue in Rubio, is directed at the payer or offeror who “induce[s]” the referral of patients or patronage. The overall evil is patient brokering, but specifically as to Desimone, as a health care provider, the evil to be corrected pursuant to section 817.505(a) is paying third parties to refer patients to the health care provider....

...Here, Desimone was charged with specific payments by separate checks to Rizzo and to United in return for referrals. Thus, even though the State conceded that the payments were for the same patients, Desimone paid each player, Rizzo and United, to induce each player to refer to Desimone/Impact Q patients for lab testing. Section 817.505(1)(a) prohibits Desimone from inducing referral or patronage, which inducement is made by each payment, on each date, to Rizzo or United. Because the focus is on the payor in section 817.505(1)(a), not the payee as in Rubio, the fact that the payments are for the referral of the same patients for the same lab tests is not material....

...If a provider has to pay two parties to obtain patient referrals, the provider is twice entering into deals to broker the patients. Logically, any person, health care provider, or facility making several deals to induce the same referrals or patronage is engaging in more prohibited behavior pursuant to section 817.505(1)(a) than the person, health care provider, or facility which makes only one deal to induce referrals or patronage. For that reason, the “common sense” unit of prosecution under section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. Conclusion For the foregoing reasons, the unit of prosecution under section 817.505(1)(a), Florida Statutes (2016), is each payment made to induce the referral of patients or patronage....

...ING WARNER, J. We deny the appellee’s motion for rehearing, vacate our prior opinion, and substitute the following in its place. The State appeals the dismissal of four counts of an information charging appellee Desimone with violations of section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act), which prohibits payments to an entity or person for referring patients to a health care provider....

...We hold that the trial court erred by holding an evidentiary hearing to determine disputed issues of fact which were for the jury to determine. We also conclude, based upon the allegations in the information, that the statute allowed the State to bring these multiple charges because the unit of prosecution pursuant to section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. Therefore, we reverse. The Patient Brokering Act The State charged appellee Desimone with thirteen counts of violating section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act). That section provides: (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission,...

...er, to induce the referral of patients or patronage to or from a health care provider or health care facility[.] Id. In State v. Rubio, 967 So. 2d 768 (Fla. 2007), our supreme court determined the allowable unit of prosecution under section 817.505(1)(b), which prohibits receiving payment for patient referrals....

...arrangements . . . . [I]n accordance with the plain language of the statute, the State is not limited to prosecuting only the arrangement to refer patients.” Id. at 778. The question presented in this case is how the statute should be applied in section 817.505(1)(a), when a health care provider pays multiple commissions to different parties for referrals of the same patients on the same dates. Facts 2  Safe Harbou...

...Rizzo’s corporations. From this order, the State appeals. Analysis The State first contends that the trial court erred by holding an evidentiary hearing on Desimone’s motion to dismiss to determine the unit of prosecution for section 817.505(1)(a), Florida Statutes (2016). Desimone filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b), arguing that the court should dismiss for multiplicity the several counts of the information....

...hearing to determine the issues” regarding whether the defendant involuntarily waived his immunity). This case does not fall into any of those categories. On a motion to dismiss, the supreme court in Rubio determined de novo the unit of prosecution as to section 817.505(1)(b), Florida Statutes....

...patients on the same days can be charged as different violations of the Patient Brokering Act, or whether such payments constitute only one violation for each day. We conclude that such payments may be separately charged, because the correct unit of prosecution pursuant to section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. The Fifth Amendment double jeopardy clause protects against multiple punishments for the same offense....

...3d at 48 (same). “[I]t is a distinguishable discrete act that is a separate violation of the statute.” McKnight, 906 So. 2d at 371. In Rubio, the supreme court addressed the question of the unit of prosecution and multiplicity in connection with section 817.505(1)(b) which makes it unlawful for a person to solicit or receive “any commission ....

...rangement to refer patients.” Id. The court considered the application of the “a/any” test to determine whether the Legislature intended to allow multiple offenses or a singular unit of prosecution. Id. at 777. The use of the word “any” in section 817.505(1)(b) had led the Fifth District to affirm the trial court’s dismissal of charges because the Fifth District held it could “discern no intent by the Legislature to criminalize each and every act done pursuant to the agreement.” Id....

...Instead, the court stated a “common-sense approach” should be followed to discern the intended unit of prosecution. Rubio, 967 So. 2d at 777 (quoting Bautista v. State, 863 So. 2d 1180, 1183 (Fla. 2003)). Rubio concluded that to determine the intended unit of prosecution for section 817.505, it had to “look at the overall statutory scheme and language of the statute.” Id....

...activities. Whether on those dates the defendants actually did take part in a split-fee arrangement in return for the referral of patients is a question for the trier of fact. Id. at 779. The court then held that the unit of prosecution under section 817.505(1)(b) constituted each time the patients were referred to the health care providers....

...patient referrals on the same dates. We find that the trial court, however, applied a mechanistic analysis, rather than Rubio’s “common sense” analysis. The trial court focused on the word “engage” with respect to a split-fee arrangement as used in both sections 817.505(a) and (b) as the Rubio court did....

...consideration of the “whole subsection” and “look[ing] at the overall statutory scheme and language of the statute.” 967 So. 2d at 778. Here, if the payments are considered commissions or kickbacks, rather than a split fee arrangement, then section 817.505(a) provides that it is a violation to pay “any commission” or “kickback.” See § 817.505(1)(a), Fla....

...When determining the “unit of prosecution,” the focus is directed to “the aspect of criminal activity that the Legislature intended to punish.” Rubio, 967 So. 2d at 777 (quoting McKnight, 906 So. 2d at 371). 8  Section 817.505(1)(a), unlike section 817.505(1)(b) at issue in Rubio, is directed at the payer or offeror who “induce[s]” the referral of patients or patronage. The overall evil is patient brokering, but specifically as to Desimone, as a health care provider, the evil to be corrected pursuant to section 817.505(a) is paying third parties to refer patients to the health care provider....

...Here, Desimone was charged with specific payments by separate checks to Rizzo and to United in return for referrals. Thus, even though the State conceded that the payments were for the same patients, Desimone paid each player, Rizzo and United, to induce each player to refer to Desimone/Impact Q patients for lab testing. Section 817.505(1)(a) prohibits Desimone from inducing referral or patronage, which inducement is made by each payment, on each date, to Rizzo or United. Because the focus is on the payor in section 817.505(1)(a), not the payee as in Rubio, the fact that the payments are for the referral of the same patients for the same lab tests is not material....

...If a provider has to pay two parties to obtain patient referrals, the provider is twice entering into deals to broker the patients. Logically, any person, health care provider, or facility making several deals to induce the same referrals or patronage is engaging in more prohibited behavior pursuant to section 817.505(1)(a) than the person, health care provider, or facility which makes only one deal to induce referrals or patronage. For that reason, the “common sense” unit of prosecution under section 817.505(1)(a) is each payment made to induce the referral of patients or patronage. Conclusion For the foregoing reasons, the unit of prosecution under section 817.505(1)(a), Florida Statutes (2016), is each payment made to induce the referral of patients or patronage....

...Warner, Assistant Attorney General, West Palm Beach, for petitioner. Jeremy J. Kroll of Dutko & Kroll, P.A., Fort Lauderdale, for respondent. GERBER, J. The state charged the defendant with over one hundred counts of patient brokering in violation of section 817.505(1)(a), Florida Statutes (2016)....

...The circuit court, after considering the parties’ evidence and arguments, entered an order denying the state’s motion in limine. The state has now filed with this court a petition for a writ of certiorari, requesting this court to quash the circuit court’s order denying the state’s motion in limine, find that section 817.505 is a general intent crime, and preclude the defendant from asserting an “advice of counsel” defense at trial. As a matter of first impression, we hold that “advice of counsel” is not a defense to the general intent crime of patient brokering as provided in section 817.505(1)(a), Florida Statutes (2016)....

...The parties’ arguments on this petition; and 3. Our review. 1. Procedural History a. The Florida and Federal Statutes at Issue The state charged the defendant with over one hundred counts of patient brokering in violation of section 817.505(1)(a), Florida Statutes (2016). At that time, section 817.505(1)(a) provided: (1) It is unlawful for any person, including any health care provider or health care facility, to: (a) Offer or pay any commission, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of patients or patronage to or from a health care provider or health care facility[.] § 817.505(1)(a), Fla. Stat. (2016). 1 Section 817.505(3), Florida Statutes (2016), included a “safe harbor” providing that 817.505 shall not apply to certain enumerated practices. These exempt enumerated practices at that time included: Any discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder. § 817.505(3)(a), Fla. Stat. (2016) (emphasis added). 2 1 The 2019 version of section 817.505(1)(a) also prohibits any person from offering or paying any “benefit” to induce the referral of patients or patronage to or from a health care provider or health care facility. § 817.505(1)(a), Fla. Stat. (2019). 2 The 2019 version of section 817.505(3)(a) now uses slightly different and more specific language. Section 817.505(3)(a) now provides that section 817.505 shall not apply to any discount, payment, waiver of payment, or payment practice “expressly authorized by 42 U.S.C. s. 1320a-7b(b)(3) or regulations adopted thereunder.” § 817.505(3)(a), Fla....

...The State’s Motion in Limine Upon information that the defendant would assert an “advice of counsel” defense, the state filed a motion in limine seeking to prohibit the defendant from asserting such a defense. The state’s motion argued that section 817.505(1)(a)’s prohibition on patient brokering is a general intent crime, not a specific intent crime, and “advice of counsel” is not a defense to a general intent crime....

...4th DCA 1999) (“misadvice of counsel” defense is not available for a general intent crime); Aversano v. State, 966 So. 2d 493, 495 (Fla. 4th DCA 2007) (“advice of counsel defense . . . applies only to a specific intent crime”). The state argued that section 817.505(1)(a) is a general intent crime based on the statute’s plain language, because the statute “does not require a heightened or particularized intent beyond the mere intent to commit the act itself.” Cf....

...Hence, we conclude that section 843.12 is a general, rather than a specific, 3 intent statute, for which the defense of ‘misadvice of counsel’ is not available.”). Further, the state contended, unlike other sections within chapter 817, section 817.505(1)(a) does not contain any “specific intent” words which might suggest the possibility of a heightened mens rea requirement....

...the rule of lenity. In short, unless there is a clear and purposeful statement in the statute or in the legislative history indicating that the Florida Legislature specifically intended to exclude an element of scienter from [section 817.505(1)(a)] then this Court must find that there is one. In furtherance of this argument, the defendant contended that because section 817.505(3)(a) refers to 42 U.S.C. section 1320a-7b(b), which expressly requires that its violation occur “knowingly and willfully,” the same mens rea requirement must be imputed into section 817.505(1)(a). Alternatively, the defendant argued, even if the Florida Legislature intended to exclude a mens rea requirement from section 817.505(1)(a), the United States Constitution’s Supremacy Clause causes 42 U.S.C. section 1320a-7b(b) to preempt section 817.505(1)(a), thereby imputing section 1320a-7b(b)’s mens rea requirement into section 817.505(1)(a). Under either theory, the defendant argued, requiring the state to prove a defendant’s mens rea for violating section 817.505(1)(a) protects against prosecution for negligent, mistaken, or inadvertent conduct, including good faith reliance on the advice of counsel. Thus, the defendant argued, advice of counsel is a defense to prosecution under section 817.505(1)(a). 4  d. The State’s Reply to the Defendant’s Response In reply to the defendant’s response, the state reiterated that because section 817.505(1)(a) “does not require a heightened or particularized intent beyond the mere intent to commit the act itself,” Franchi, 746 So. 2d at 1128, section 817.505(1)(a)’s prohibition on patient brokering is a general intent crime, not a specific intent crime. The state also added that even assuming section 817.505 imputed the “knowingly and willfully” mens rea from 42 U.S.C. section 1320a-7b(b), section 817.505 would still be a general intent crime....

...In the order, the circuit court began by recognizing that the “advice of counsel defense applies only to a specific intent crime.” Therefore, the circuit court reasoned, “to determine whether the advice-of-counsel defense is available to a defendant charged with violations of section 817.505, Florida Statutes, this Court must first determine whether Patient Brokering under [section 817.505] is a general or specific intent crime.” According to the circuit court, “Looking to the plain language of the statute, [section 817.505] does not require a heightened or particularized intent beyond the mere intent to commit the act itself. Therefore, on its face, [section 817.505] appears to be a general, rather than specific, intent statute.” The circuit court then turned to the defendant’s argument that under the United States Constitution’s Supremacy Clause, section 817.505 is preempted by 42 U.S.C....

...section 1320a-7b(b)’s requirement of a “knowingly and willfully” mens rea. Relying on the Fifth District’s opinion in State v. Rubio, 917 So. 2d 383 (Fla. 5th DCA 2005), as adopted by the Florida Supreme Court in State v. Rubio, 967 So. 2d 768 (Fla. 2007), the circuit court found that section 817.505 is not preempted by section 1320a-7b(b). Despite these two findings, the circuit court nevertheless concluded that section 817.505 was a specific intent statute for which the defendant 5 could assert an “advice of counsel” defense. In a section which the circuit court entitled “Incorporation by Reference,” the circuit court reasoned: Although not preempted by [42 U.S.C. section 1320a- 7b(b)], because the safe harbor provision of section 817.505(3)(a) explicitly exempts practices “not prohibited by 42 U.S.C. § 1320a-7b(b),” [section 817.505] effectively incorporates by reference [42 U.S.C....

...administrative rules made by federal administrative bodies, which provisions are in existence and in effect at the time the Legislature acts.” State v. Rodriquez, 365 So. 2d 157, 160 (Fla. 1978) (citing Freimuth v. State, 272 So. 2d 473 (Fla. 1972)). [Section 817.505], including [subsection (3)(a)] containing the safe harbor provision, was first enacted in 1996, while the modern version of [42 U.S.C. section 1320a-7b(b)] was first enacted in 1972. Congress amended [42 U.S.C. section 1320a-7b(b)] multiple times both before and after the enactment of the [section 817.505]. [The version of 42 U.S.C. section 1320a-7b(b)] in effect when the Legislature enacted [section 817.505] provided that whoever “knowingly and willfully” violated [42 U.S.C....

...Harden, 938 So. 2d 480, 491 (Fla. 2006)], (quoting United States v. Starks, 157 F.3d 833, 838 (11th Cir. 1998)). Thus, the “knowingly and willfully” mens rea element of [42 U.S.C. section 1320a-7b(b)] is incorporated by reference into [section 817.505]. Further, because [section 817.505] contains a “willfully and knowingly” mens rea as incorporated by reference, Patient Brokering is a specific intent crime. As such, a defendant may assert the advice of counsel defense when charged with violations of [section 817.505]. Based on the foregoing reasoning, the circuit court denied the state’s motion in limine. 6  2....

...The Parties’ Arguments on this Petition a. The State’s Arguments The state has now filed with this court a petition for a writ of certiorari, requesting this court to quash the circuit court’s order denying the state’s motion in limine, find that section 817.505 sets forth a general intent crime, and preclude the defendant from asserting an “advice of counsel” defense at trial. The state correctly cites its burden as having to show that the circuit court’s order departs from the es...

...See generally State v. Pettis, 520 So. 2d 250, 252-53 (Fla. 1988) (discussing a district court’s ability to consider state petitions for certiorari to review pretrial orders). According to the state, the circuit court’s order here meets that burden, because section 817.505 is a general intent crime, and allowing the defendant to present an “advice of counsel” defense to a general intent crime constitutes a departure from the essential requirements of the law for which the state would suffer irrepara...

...from the essential requirements of the law for the following reasons: First, the trial court conceded that the advice-of-counsel defense is precluded when applied to a general-intent crime. Second, the trial court conceded that the plain language of [section 817.505] explicitly demonstrates that it is in fact a general-intent crime....

...2 U.S.C. section 1320a-7b(b)] was a specific-intent crime despite the federal statute requiring only general intent, that the Florida Legislature’s limited incorporation of the federal statute as a safe-harbor provision in [section 817.505] entitled the trial court to rewrite the Florida statute and add the new element 7  of specific intent found in neither the state nor federal statute. The trial court found, without refe...

...reference” of the safe-harbor provision required that the state statute must mirror the federal statute in its entirety, regardless of the Legislature’s intent not to do so . . . . The trial court’s order directly conflicts with Rubio’s holding that [section 817.505] incorporated [section 1320a- 7b(b)] only as to the safe-harbor provision . . . . The trial court erroneously heightened the mens rea required for [section 817.505] by taking out of context a statement from Harden v....

...In order to constitute such a departure, “[t]here must be a violation of a clearly established principle of law resulting in a miscarriage of justice” Belvin v. State, 922 So. 2d 1046, 1048 (Fla. 4th DCA 2006). There is no case law in the State of Florida that interprets [section 817.505(3)(a)] as it relates to the inclusion of the exemptions, exceptions, intent requirements and regulatory exceptions to [42 U.S.C. section 1320a-7b(b)]. The Fifth District Court opinion in Rubio merely held that [section 817.505] is not unconstitutional for the failure to contain an explicit 8 willfulness provision. That holding explicitly references the existence of [section 817.505(3)(a)] as the court’s reason that the statute is constitutional. Nothing about that holding is inconsistent with the trial court's order. The plain language of [section 817.505(3)(a)] actually conveys that any practice or conduct not prohibited under [42 U.S.C. section 1320a-7b(b)] shall not constitute a violation of [section 817.505]. [Section 817.505(3)(a)] incorporates by reference [all of 42 U.S.C. section 1320a-7b(b)] that was effective in 1996, including regulatory exceptions and the portions of the statute that create the knowing and willful mens rea standard. The plain language of [42 U.S.C. section 1320a-7b(b)] suggests [section] 817.505 is inapplicable to any conduct not criminalized by [42 U.S.C. section 1320a-7b(b)], which naturally and logically incorporates the federal scienter into [section 817.505]. Further, the rule of lenity requires [section 817.505] to be construed in the light most favorable to the accused, militating towards the inclusion of the specific intent language in [section 817.505]....

...section 1320a-7b(b)] is not a general intent statute. First, as the trial court’s order clarifies, the Legislature may adopt provisions of federal statutes and, when it does so, it is the provisions in existence and in effect at the time the Legislature acts that are adopted. When [section 817.505] was enacted in 1996, [42 U.S.C. section 1320a-7b(h)] did not exist and, to this day, [section 817.505(3)(a)] does not include this provision by reference. Thus, [42 U.S.C....

...2d at 252-53. We need only briefly address the state’s burden to show irreparable harm, as the state has easily met that burden. At this juncture, it appears the state is not disputing the defendant’s allegation that he relied on the advice of counsel in taking the actions which constitute his alleged violations of section 817.505(1)(a)....

...e irreparable. Therefore, our focus is on the state’s burden to show that the circuit court’s order departs from the essential requirements of the law. The state has met that burden as well. We reach that conclusion for three reasons. a. Section 817.505 does not incorporate section 1320a-7b(b) in its entirety. First, no authority exists for the circuit court’s finding that section 817.505 “effectively incorporates by reference” 42 U.S.C. section 1320a- 7b(b) in its entirety, including section 1320a-7b(b)’s inclusion of the “knowingly and willfully” mens rea. Instead, section 817.505(3)’s plain language, providing that section 817.505 shall not apply to certain enumerated practices, merely includes in these exempt enumerated practices “[a]ny discount, payment, waiver of payment, or payment practice not prohibited by 42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.” § 817.505(3)(a), Fla....

...(2016). The antecedent phrase “[a]ny discount, payment, waiver of payment, or payment practice not prohibited by” cannot be judicially disconnected from the consequent phrase “42 U.S.C. s. 1320a-7b(b) or regulations promulgated thereunder.” 10  Thus, taken in context, section 817.505(3)(a)’s reference to section 1320a-7b(b) at best incorporates only section 1320a-7b(b)’s exempt enumerated practices, as contained in section 1320a-7b(b)(3). See Rubio, 917 So. 2d at 396 (section 817.505’s prohibition against patient brokering “is not limited to situations involving Medicaid or federal programs”). b....

...The Circuit Court’s reliance on State v. Harden was misplaced. Second, the circuit court’s reliance on Harden, 938 So. 2d at 491, for the proposition that section 1320a-7b(b)’s “knowingly and willfully” mens rea can be incorporated into section 817.505, to require proof that “the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful,” was misplaced. In Harden, our supreme court held that the anti-kickback provis...

...A second intertwined reason for the supreme court’s holding that section 409.920(2)(e) was unconstitutional was because section 409.920(2)(e) contained no “safe harbor” exemptions. Id. at 492. However, in this case, unlike section 409.920(2)(e), section 817.505(3)(a) contains “safe harbor” exemptions. That difference became significant when our supreme court, in State v. Rubio, 967 So. 2d at 776, was faced with the argument that section 817.505 also is unconstitutional because it likewise fails to impose a “willfulness” mens rea requirement. The supreme court, contrary to its holding in Harden, adopted in Rubio the Fifth District’s reasoning that section 817.505 remains constitutional because, unlike section 409.920(2)(e) which lacked any “safe harbor” exemptions, “[s]ection 817.505(3)(a) specifically provides that the statute does not apply to any payment practice not prohibited by 42 U.S.C....

...willfully” mens rea to require proof that the defendant “acted with knowledge that his conduct was unlawful,” i.e., with specific intent, Rubio suggests that such a definition cannot be incorporated into section 11 817.505 due to the “safe harbor” distinction between sections 490.920(2)(e) and 817.505(3)(a). Further, because Harden was decided in 2006, our supreme court did not discuss the import of Congress’s later enactment of 42 U.S.C....

...Instead, the Government must prove that the defendant willfully committed an act that violated the Anti–Kickback Statute.”). c. “Knowingly and Willingly” does not equate to specific intent. Third, even if the “knowingly and willingly” mens rea is somehow imputed into section 817.505(1)(a) by operation of law as the defendant argues, such an incorporation would not transform a violation of section 817.505(1)(a) from a general intent crime into a specific intent crime. We reach this conclusion based on our supreme court’s opinion in Frey v....

...4th DCA 13 1999) (aiding escape is a general intent crime); Olenchak v. State, 183 So. 3d 1227, 1229 (Fla. 4th DCA 2016) (sexual battery is a general intent crime). We rely on Frey again here to conclude that patient brokering in violation of section 817.505 is a general intent crime. Even if we were to assume that the “knowingly and willingly” mens rea is somehow incorporated into section 817.505(1)(a), the statute’s plain language reveals that no heightened or particularized, i.e., no specific, intent is required for the commission of this crime. See Frey, 708 So. 2d at 920; Franchi, 746 So. 2d at 1128. Conclusion Having concluded that section 817.505(1)(a)’s prohibition on patient brokering is a general intent crime, not a specific intent crime, we further conclude that the defendant cannot assert “advice of counsel” as a defense here....

...circuit court’s order denying the state’s motion in limine. We direct the circuit court, on remand, to enter an order granting the state’s motion in limine on the basis that “advice of counsel” is not a defense to the general intent crime of patient brokering as provided in section 817.505(1)(a), Florida Statutes (2016). Petition granted with instructions. MAY and KUNTZ, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing....

against fee splitting and patient brokering of section 817.505(l)(b), Florida Statutes (2002). Prosper appealed

...l injury attorneys and primary care providers to induce and reward patient referrals, in violation of Florida’s Anti-Kickback Statute, see FLA. STAT. § 456.054, and Florida’s Patient Brokering Act, see FLA. STAT. § 817.505....