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4th District Court Ruling Excludes Advice of Counsel Defense From Patient Brokering Act Prosecutions

by admin on August 7, 2019 No comments

The Fourth District Court of Appeal just ruled that the fact that a person received and acted on the advice of a lawyer is inadmissible when being prosecuted for violating the Florida Patient Brokering Act. 

Florida Patient Brokering Act

 The Court found that the Act is a “general intent” crime, not a “specific intent” crime because it does not specifically say it’s illegal to do the specified things “knowingly and willingly” (or words to that effect). Had the law contained such language, it would have been considered to be a “specific intent crime,” thus entitling the accused to introduce into evidence the fact that the person got legal advice before engaging in the targeted conduct.

The ruling ALSO creates an opportunity for the Legislature to reexamine the law to see if specific intent language makes sense. We strongly believe that it should, since the federal law the Act was originally modeled on (the Anti-Kickback Statute) contains such specific intent-type language. And while the Act has exceptions that would still apply to prosecuted individuals, the ruling underscores the importance of reexamining any and all compensation arrangements between healthcare providers, especially those connected in any way to patient referrals or business generation.     

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