South Florida Hospital News
Monday August 19, 2019
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April 2005 - Volume 1 - Issue 9

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Health Care Lawyer Challenges 1996 Florida Statute

In reference to his health care practice, Anthony C. Vitale, Esq. says, "I like to do things which can change the law. That gets me excited." If that is the case, Vitale must be quite excited following a recent decision which found unconstitutional a statute which had been on the books since 1996.

In the case in question, Florida v. Rubio, the prosecution charged the defendants with receiving kickbacks for patient referrals. The defendants were dentists Sonia Bonilla and Anamaria Bonilla, who are sisters; John Anthony Rubio, who owns a dental practice management company; and Iliana Martin-Fernandez and Gustavo Adolfo Fernandez, two of Rubio's employees.

The prosecution claimed the defendants were part of a scheme that charged Medicaid more than $715,000 for dental work on children that was either only partially performed, performed incorrectly, or billed at a higher rate.

At the heart of the matter is the 1996 patient-brokering statute, which was originally enacted to help bring to an end the abuse in the referral of patients to psychiatric hospitals and substance abuse facilities. However, while the law defined as illegal any fee-splitting arrangement, it did not define what an illegal fee-split is, and it made no reference to intent.

In Florida, the defense claimed that the statute was going too far by stating it was illegal for doctors and dentists to split fees for patient referrals. "The prosecution was trying to criminalize a dental practice management relationship with a dental group," Vitale said. "There are probably 100 publicly traded practice management companies who do this," he explained. "They handle the business aspect of the practice and do the marketing, while the clinicians handle the clinical side."

Judge Thomas B. Smith agreed, ruling that the statute was flawed because it made no mention of mens rea – criminal intent. He based his decision on the fact that for a criminal judgment to be made, a defendant must knowingly or willingly be making false statements or representations regarding kickbacks.

Vitale said that decision was the reason for his success in coming up against the nearly decade-old statute, because "No one ever attacked the statute on these grounds. To have a criminal statute without intent—there's no kickback statute anywhere that allows someone to violate it accidentally or mistakenly."

He added that declaring the statute illegal was an important decision for Florida: "The ramifications (of the original law) for practice management companies were great and drove many of them out of the state."

However, they may not be coming back to set up shop just yet because the decision is being appealed according to Vitale. "The state already filed notice of appeal and it will probably (go to court) within a year," he said. "It will first go to the District Court level, and then if we win again, it will go to the Florida Supreme Court."

Founder of the Health Law Offices of Anthony C. Vitale, P.A. in Miami, Vitale is a graduate of Nova University's Sheppard Broad Law Center. He started his career as a criminal lawyer, working as a prosecutor in Janet Reno's office. He left Reno's practice and explained the progression of how he came to his current position of being a respected health care lawyer: "I opened an office with a couple of other attorneys, and we had an intern whose father owned a medical center and a medical equipment company. The father also had two other brothers who were in the medical field, so we started to do some Medicare and Medicaid work. The practice began to pick up in that area so we got away from criminal law and went into health care."

He added that when Reno was Attorney General, she made health care fraud the number two priority at the Department of Justice. "The only (attorneys) doing health care at that time were in large law firms," he said. So Vitale opened his boutique firm and has been handling all phases of health care law for 15 years.

"I studied health care law and joined associations to learn more about it," he said. "I teach health care law at Saint Thomas University. We have a good reputation."

Vitale's firm, which also has an office in Tampa, is recognized statewide as a leader in health care law and consultation.

For more information, call (305) 358-4500 or visit www.vitalehealthlaw.com.
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