State v. Rubio
| Citation | 917 So.2d 383 |
| Decision Date | 30 December 2005 |
| Docket Number | No. 5D05-846.,5D05-846. |
| Parties | STATE of Florida, Appellant, v. John Anthony RUBIO, Sonia B. Guzman, et al., Appellee. |
| Court | United States State Supreme Court of Florida |
Charles J. Crist, Jr., Attorney General, Christopher M. Kise, Solicitor General and James A. McKee, Deputy Solicitor General, Tallahassee, for Appellant.
G. Richard Strafer of G. Richard Strafer, P.A., Miami, for Appellee.
This case involves charges of Medicaid provider fraud, patient brokering, racketeering and white collar crimes against various defendants, who are all engaged in the field of dentistry. The trial court dismissed most of the charges against the defendants and struck the predicate incidents used by the state to support the remaining charges. In so doing, the trial court declared Florida's patient brokering law and the version of Florida's Medicaid provider fraud law applicable to this case unconstitutional. We disagree with the trial court concerning Florida's patient brokering law and conclude that statute is constitutional. In all other respects, we affirm the trial court.
In October 2003, the state filed a 130 count information against appellees Sonia Guzman and Anamaria Mendez and three co-defendants John Rubio, Iliana Martin-Fernandez1 and Gustavo Fernandez. Counts 1 and 2 charged all defendants with racketeering and conspiracy to commit racketeering in violation of section 895.03, Florida Statutes. 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. Count 130 charged all defendants with violating the White Collar Crime Victim Protection Act, section 775.0844, Florida Statutes.
Guzman and Mendez are dentists who operated a dental office in Miami. According to the state, they were recruited to come to Orlando to provide dental services to Medicaid-eligible children. Rubio and Gustavo Fernandez solicited these children primarily from public housing areas and transported them to and from the clinic. The dentists billed Medicaid and split the fees with Rubio. Five Medicaid recipients were examined by a pediatric dentist who found no evidence to support the claims submitted on their behalf.
According to the defendants, the fee arrangement was actually between their corporations — Bonilla Professional Services operated by the dentists and Dental Management, Inc., a dental practice management company owned by Rubio. Rubio's company markets for the dental practice, handles the business aspects of the dental practice and lets the dentists do the clinical work. In return for getting a turnkey dental office and marketing, Rubio's company is paid between 42% and 43% of the compensation received by the dentists for their services. The defendants consider this to be a legitimate dental practice management fee.
The defendants moved to dismiss counts 3-55 and to strike the predicate incidents of counts 1, 2 and 130 on the basis that section 409.920(2)(a) is unconstitutional. The defendants argued that the version of section 409.920 applicable to them criminalized even the negligent filing of a false Medicaid statement. Since the Medicaid Act and federal regulations require an elevated mens rea standard of willfulness to support criminal prosecutions, Florida's prosecution of the same conduct under this lesser standard would be unconstitutional under the Supremacy Clause. In support, the defendants relied on State v. Harden, 873 So.2d 352 (Fla. 3d DCA 2004) in which the Third District held that another part of section 409.920 — 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. The court concluded that because Congress intended a willfulness mens rea standard for a criminal prosecution for making false statements and paying kickbacks, Florida cannot criminalize the same behavior under a lesser standard.
The defendants were charged with committing Medicaid provider fraud at various times in 1999-2002 in violation of section 409.920(2)(a):
409.920. Medicaid provider fraud
(2) It is unlawful to:
(a) 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 relevant to this case, section 409.920(1)(d) defined "knowingly" as follows:
(1)(d) "Knowingly" means 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. (emphasis added)
Effective July 2004, the Legislature redefined "knowingly" to include "willfully" or "willful." Ch.2004-344, § 8, Laws of Fla. Section 409.920(1)(d) currently provides:
(1)(d) "Knowingly" means that the act was done voluntarily and intentionally and not because of mistake or accident. As used in this section, the term "knowingly" also includes the word "willfully" or "willful" which, as used in this section, means that an act was committed voluntarily and purposely, with the specific intent to do something that the law forbids, and that the act was committed with bad purpose, either to disobey or disregard the law.
The present definition is now in accord with the federal intent requirement:
42 U.S.C.A. § 1320a-7b. Criminal penalties for acts involving Federal health care programs
(a) Making or causing to be made false statements or representations
Whoever—
(1) knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under a Federal health care program shall ... (i) in the case of such a statement, representation, concealment, failure, or conversion by any person in connection with the furnishing (by that person) of items or services for which payment is or may be made under the program, be guilty of a felony and upon conviction thereof fined not more than $25,000 or imprisoned for not more than five years or both, or (ii) in the case of such a statement, representation, concealment, failure, conversion, or provision of counsel or assistance by any other person, be guilty of a misdemeanor and upon conviction thereof fined not more than $10,000 or imprisoned for not more than one year, or both ... (emphasis added)
The defendants argued below that the definition of "knowingly" applicable to them included mere negligence, thus rendering section 490.920(2)(a) unconstitutional under the Supremacy Clause2 because it established a mens rea requirement lower than the federal standard. The trial court agreed that section 409.920(2)(a) was preempted by federal law. The court reasoned that since Congress established the Medicaid program3 and limited criminal liability to "willful" conduct, Florida cannot criminalize the same behavior under a lesser "knowingly" standard.
In reaching its decision, the court relied on State v. Harden, 873 So.2d 352 (Fla. 3d DCA 2004). In Harden, the defendants were charged with racketeering, conspiracy to commit racketeering, and Medicaid fraud. The state alleged the defendants violated section 409.920(2)(e), the "anti-kickback" provision of section 409.920, by paying drivers a per head fee or commission for the solicitation and transportation of Medicaid eligible children to dental facilities for treatment.
The trial court concluded subsection (2)(e) was unconstitutional on preemption grounds and dismissed the information. On appeal, the Third District agreed the statute was unconstitutional:
[T]here are two significant differences between the federal anti-kickback statute and the Florida anti-kickback statute. First, the federal statute contains several so-called "safe harbor" provisions that exclude certain types of payments from being considered "illegal remuneration." 42 U.S.C. § 1320a-7b(b)(3)(2000). Specifically, 42 U.S.C. § 1320a-7b(b)(3)(B)(2000) protects employer-employee payments for the provision of covered items or services from criminal prosecution. The federal medicaid statutes require participating states to provide transportation to those eligible for dental services. 42 U.S.C § 1396a(a)(43)(2000); § 409.905(12), Fla. Stat. (2000). Therefore, the Florida anti-kickback statute without any "safe harbor" provisions criminalizes certain activity that is protected under the federal anti-kickback statute and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Secondly, the federal anti-kickback statute contains a "knowing and willful" mens rea requirement. Under federal law, "in order to establish a `willful' violation of a statute, `the Government must prove that the defendant acted with knowledge that his conduct was...
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