State v. Rubio
| Citation | 967 So.2d 768 |
| Decision Date | 12 July 2007 |
| Docket Number | No. SC06-157.,SC06-157. |
| Parties | STATE of Florida, Appellant, v. John Anthony RUBIO, et al., Appellees. |
| Court | United States State Supreme Court of Florida |
Bill McCollum, Attorney General, Christopher M. Kise, Solicitor General, Louis F. Hubener, Chief Deputy Solicitor General, and James A. McKee, Deputy Solicitor General, Tallahassee, FL, for Appellant.
G. Richard Strafer, Miami, Florida, and Anthony C. Vitale, Miami, FL, for Appellees.
This case is before the Court on appeal from a decision of the Fifth District Court of Appeal, State v. Rubio, 917 So.2d 383 (Fla. 5th DCA 2005), which held a state statute to be invalid. This Court has jurisdiction under article V, section 3(b)(1) of the Florida Constitution.
The defendants were charged in a 130-count information. The counts were: (1) racketeering, in violation of section 895.03(3), Florida Statutes (2002); (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 following facts were set out in the Fifth District's decision. Defendants Sonia Guzman and Anamaria Mendez are Miami dentists who were recruited to provide dental services in Orlando to Medicaid-eligible children. Guzman and Mendez billed Medicaid and then split the fees with defendants John Rubio and Gustavo Fernandez. Rubio and Fernandez solicited Medicaid-eligible children primarily from public housing areas and transported them to and from the clinic. Five Medicaid recipients were examined by a pediatric dentist, who found no evidence to support the claims submitted on their behalf. The defendants were charged with violation of the above statutes on October 27, 2003.
According to the defendants, the fee arrangement was between their corporations. Rubio's company provided management services for the dentists, including marketing for the dental practice and handling the business aspects of the dental practice. Guzman and Mendez performed the clinical work. In return for getting a turnkey dental office and marketing, Rubio's company was paid between 42% and 43% of the compensation received by the dentists for their services.
The defendants moved to dismiss all charges. On February 1, 2005, following a hearing, the trial court granted the motion, dismissing all counts because it determined that the statutes under which the defendants were charged were unconstitutional, that the counts against the defendants were multiplicitous, and that a proper predicate for the racketeering and white collar crime charges was not established.
The State appealed this dismissal to the Fifth District Court of Appeal, which affirmed in part and reversed in part the trial court's decision. 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. Id. at 391. However, the Fifth District affirmed the trial court's dismissal of the patient brokering charges on the ground that they were multipicitous. The court found that under the statute, the defendants could only be charged for the arrangement between the defendants to split fees and not for each instance of fee-splitting. Finally, the Fifth District affirmed the trial court's dismissal of the racketeering and white collar crime charges. Id. at 399.
This case comes to this Court on the basis of its mandatory jurisdiction to review the Fifth District's determination that section 409.920(2)(a) is unconstitutional. However, both the State and the defendants have also raised issues in respect to each of the decisions in the Fifth District's opinion. In our review, we will consider whether (1) the Medicaid provider fraud statute is constitutional; (2) the patient brokering statute is constitutional; (3) the charges under the patient brokering statute were multiplicitous; and (4) there is a sufficient predicate for the charges of racketeering and white collar crime. Because each of these issues concern questions of statutory constitutionality or construction, we review each issue de novo. Tillman v. State, 934 So.2d 1263, 1269 (Fla.2006); State v. J.P., 907 So.2d 1101, 1107 (Fla.2004).
In the information alleging violation of section 409.920(2)(a), the defendants were charged with on various dates knowingly making, causing to be made, or aiding and abetting the making of a claim for payment for dental services which were not rendered. The trial court's order granting the defendants' motion to dismiss on the ground that section 409.920(2)(a) is unconstitutional states that the trial court's ruling is as to the issue of law and not on the basis of findings of fact. State v. Rubio, No. 48-2003-CF-13501-O (Fla. 9th Cir. Ct. order dated Feb. 1, 2005) (Order). The Fifth District affirmed the motion to dismiss. The case is now presented for our review of whether the granting of the motion to dismiss on the constitutional ground was correct.
Section 409.920(2)(a) provides that it is unlawful to:
Knowingly make, cause to be made, or aid and abet in the making of any false statement or false representation of a material fact, by commission or omission, in any claim submitted to the agency or its fiscal agent for payment.
At the time that the defendants were charged with violating this provision, "knowingly" was defined in section 409.920(1)(d) to mean that the act is "done by a person who is aware or should be aware of the nature of his or her conduct and that his or her conduct is substantially certain to cause the intended result."1
This issue is similar to the issue of constitutionality of section 409.920(2)(e) that this Court considered in State v. Harden, 938 So.2d 480 (Fla.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2097, 167 L.Ed.2d 812 (2007). In Harden, the defendants were charged with nine counts of conspiracy, racketeering, and Medicaid fraud under section 409.920(2)(e), Florida Statutes (2000). That section states that it is unlawful to:
Knowingly solicit, offer, pay, or receive any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind, in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made, in whole or in part, under the Medicaid program, or in return for obtaining, purchasing, leasing, ordering, or arranging for or recommending, obtaining, purchasing, leasing, or ordering any goods, facility, item, or service, for which payment may be made, in whole or in part, under the Medicaid program.
This is known as the anti-kickback provision of the statute. The same definition of "knowingly" in section 409.920(1)(d) applies to both sections 409.920(2)(a) and 409.920(2)(e).
In Harden, the defendants argued that the Florida statute was preempted by the federal Medicaid anti-kickback statute, in part because the Florida statute's definition of the term "knowingly" conflicted with the federal mens rea requirement that the kickback occur knowingly and willfully. However, the defendants in Harden also based their preemption argument on the federal statute's twenty-two exceptions or "safe harbors" from the anti-kickback provisions that were not similarly excluded by the state statute. These safe harbor provisions include an exception for patient referrals occurring within a bona fide employment relationship. The defendants in Harden maintained that the alleged kickbacks were part of a bona fide employment relationship and thus could not be prosecuted under the federal statute.
In considering Harden, we reviewed the federal anti-kickback statute, noting that within the legislative history of the federal statute, it was clear that the purpose of the federal anti-kickback provision was to outlaw health care referrals that were unethical or inappropriate. Harden, 938 So.2d at 487-89. The federal statutory language for the anti-kickback provision originally had no mens rea requirement, though it was "primarily concerned with outlawing health care referrals that were considered unethical or inappropriate." Id. at 487. Subsequent amendments added both a knowing and willful mens rea requirement, as well as the safe harbor provisions. These amendments were made because of health care providers' concerns that the statute was overbroad and punished conduct that while improper, was inadvertent. Id. at 487-89. We noted that although the federal statute did not provide for explicit preemption of the Florida anti-kickback statute, implied conflict preemption could still exist. We stated that we must "look to the statutory differences between the federal and state laws and determine whether these differences warrant conflict preemption." Id. at 490. We concluded that Florida's anti-kickback statute was preempted by the federal statute because it "criminalize[d] conduct that federal law specifically intended to be lawful and shielded from prosecution." Id. at 492-93. We continued:
There is clear congressional intent to exempt compensation paid by employers to bona fide employees for providing covered items or services from those remunerations that constitute prohibited kickbacks under the federal statute. The heightened mens rea of the federal statute also indicates a clear intent that negligent or inadvertent behavior does not subject an individual to prosecution under the federal statute.
Both the heightened mens rea...
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