Id. at *4. Another percentage-based compensation agreement was at issue in Medical Development Network, Inc. v. Professional Respiratory Care/Home Medical Equip. Servs., Inc., 673 So.2d 565 (Fla.Dist.Ct.App. 1996). The agreement provided that the plaintiff would contact medical equipment users and promote and market the defendant's durable medical supplies to those users.

So have other courts. United States v. Jain, 93 F.3d 436 (8th Cir. 1996), cert. denied, 117 S. Ct. 2452 (1997); United States v. Neufeld, 908 F. Supp. 491, 496-97 (S.D. Ohio 1995); Medical Development Network v. PRC, 673 So.2d 565 (Fla.App. 1996). Some of these courts have held that the violator need only intend to commit the act that constitutes a violation.

See Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed. Reg. 35,952, 35,953 (Dep't of Health & Human Servs. July 29, 1991) (stating that a proposed regulation "set forth a safe harbor provision for joint ventures and other arrangements involving payments for personal services or management contracts, but only if certain standards are met that limit the opportunity to provide financial incentives in exchange for referrals") (rules codified at 42 C.F.R. Part 1001). Cf. Med. Dev. Network, Inc. v. Prof'l Respiratory Care/Home Med. Equip. Servs., 673 So. 2d 565, 566 (Fla. Dist. Ct. App. 1996) (holding illegal a contract under which PRC agreed to pay MDN a percentage of all business developed by MDN's marketing of PRC's durable medical supplies to clients and whereby MDN would contact users of medical equipment and promote the use of PRC's equipment); see also Miles, 360 F.3d at 480 n.3. The Inspector General has noted that with respect to marketing arrangements involving health care goods and services, "[p]ercentage compensation arrangements are potentially abusive . . . because they provide financial incentives that may encourage overutilization of items and services and may increase program costs."

The plaintiffs seek, inter alia, enforcement of a contract to pay profit distributions calculated, in part, on referrals they and other doctors made to the appellants-respondents' practice. Since this agreement between the parties was illegal because it violated Federal Medicare law ( 42 U.S.C. § 1320a-7b), was against public policy, and was proscribed by regulations enacted by the Secretary of the United States Department of Health and Human Services ( 42 C.F.R. § 1001.952 [d]), it is unenforceable ( see, Long Meadow Assocs. v. City of Glen Cove, 203 A.D.2d 262; Little Princess Truck Rentals v. Pergament Distribs., 143 A.D.2d 179; Nursing Home Consultants v. Quantum Health Servs., 926 F. Supp. 835, affd 112 F.3d 513; Modern Med. Labs. v. Smith-Kline Beecham Clinical Labs., 1994 U.S. Dist LEXIS 11525 [ND Ill]; Medical Dev. Network v. Professional Respiratory Care/Home Med. Equip. Servs., 673 So.2d 565 [Fla]). In light of this determination, the parties' remaining contentions are academic.