State v. Wolland

• Decision Date: 25 May 2005
• Docket Number: No. 3D04-1380.,3D04-1380.
• Citation: 902 So.2d 278
• Parties: The STATE of Florida, Appellant, v. Shelley WOLLAND, Appellee.
• Court: Florida District Court of Appeals

902 So.2d 278

The STATE of Florida, Appellant, v. Shelley WOLLAND, Appellee.

No. 3D04-1380.

District Court of Appeal of Florida, Third District.

May 25, 2005.

Charles J. Crist, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.

Joseph S. Paglino, Hollywood, for appellee.

Before GREEN, RAMIREZ, and WELLS, JJ.

WELLS, J.

The State appeals the dismissal of 115 counts of making false statements to the Florida Agency for Health Care Administration wherein the trial court concluded that the statute on which these counts are predicated was preempted by federal law. On the following analysis, we reverse.

Background

The State filed an information charging Shelley Wolland with one hundred and fifteen (115) counts of Medicaid fraud/filing false claims and one count of first degree grand theft. Counts 1 through 115 of the information alleged that on various dates between January 1, 2001 and December 31, 2001, Wolland "did knowingly and unlawfully, make ... a false statement or false representation of material fact ... to the Agency for Health Care Administration ... in violation of s. 409.920(2)(a) Florida Statutes." Count 116 alleged the theft of over one hundred thousand dollars ($100,000) from the Agency for Health Care Administration.

Wolland filed a motion to dismiss, arguing that subsection 409.920(2)(a), Florida Statutes (2001) of Florida's Medicaid Provider Fraud Statute was unconstitutional both as applied to her and on its face because it is preempted by federal law. Section 409.920 provides in relevant part:

(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.

The parallel provision of the federal Social Security Act, 42 U.S.C. § 1320a-7b(a) makes it unlawful to:

(1) knowingly and willfully make[ ] or cause[ ] 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....

Wolland, pointing out that the federal act requires that the act be done "knowingly and willfully" while the Florida act requires only that the act be done "knowingly," maintained that the omission of the "willfully" requirement from the Florida statute rendered conduct that was not criminal under the federal statute unlawful under the Florida Statute.¹ Thus, based on this distinction, she argued that the Florida law should be held unconstitutional. Wolland additionally maintained that because the grand theft charge, count 116, was based on the aggregate of counts 1-115, that count should be dismissed as well.

Shortly after Wolland filed her motion, this Court issued State v. Harden, 873 So.2d 352 (Fla. 3d DCA 2004), affirming a trial court's order finding subsection 409.920(2)(e)², the anti-kickback provision of Florida's Medicaid provider fraud statute, to be unconstitutional.³ In Harden we decided that subsection 409.920(2)(e) impliedly conflicted with the federal anti-kickback statute, and thus was preempted under the Supremacy Clause. This conclusion rested on two grounds. First, we concluded that as to subsection 409.920(2)(e), federal legislation was in place which protected the particular behavior at issue but because the Florida provision accorded no similar safe harbor, it obstructed the objectives and purposes of the federal act. Harden, 873 So.2d at 355 (citation omitted). Second, we concluded that because subsection 409.920(2)(e) criminalized only knowing conduct, whereas the federal act criminalized conduct that was both knowing and willful, enforcement of Florida's law would act as an obstacle to the purposes and goals of the federal act:

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 unlawful.'" Bryan v. United States, 524 U.S. 184, 192, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (citations omitted). In contrast, Florida's anti-kickback statute only requires that the defendant act "knowingly." In turn, "knowingly" is defined as "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." § 409.920(1)(d), Fla. Stat. (2000). This Florida definition of "knowingly" would include "mere negligence," thereby criminalizing activity that the federal statute intended to protect. Hanlester Network v. Shalala, 51 F.3d 1390, 1399 n. 16 (9th Cir.1995)("The legislative history demonstrates that Congress, by use of the phrase `knowingly and willfully' to describe the type of conduct prohibited under the anti-kickback laws, intended to shield from prosecution only those whose conduct `while improper, was inadvertent.'"). Again, enforcement of the Florida anti-kickback statute would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Harden, 873 So.2d at 355 (citation omitted).

Applying the analysis outlined in Harden, the trial court in this case concluded that the Florida false claims provision, subsection 409.920(2)(a), was preempted by the federal health care false claims provision, 42 U.S.C. § 1320a-7b(a)(1), and that Wolland's motion to dismiss should be granted as to counts 1 through 115. We disagree. Using the same standard employed in Harden, we conclude that subsection 409.920(2)(a) does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress as delineated in 42 U.S.C. § 1320a-7b(a)(1), and that Wolland's claim of preemption should have been rejected.

The Doctrine of Preemption

The Supremacy Clause, article VI, clause 2, of the United States Constitution authorizes Congress to preempt state law, either expressly in a federal act or by so completely taking over a field of law as to create an inference of federal exclusivity. See Harrell v. Florida Const. Specialists, 834 So.2d 352, 355 (Fla. 1st DCA 2003); Jennifer S. Hendricks, Preemption of Common Law Claims and the Prospects for FIFRA: Justice Stevens Puts The Genie Back In The Bottle, 15 DUKE ENVTL. L. & POL'Y F. 65, 69-70 (2004).

Federal preemption may also be implied where a conflict exists between a federal and a state law to the extent that it is either physically impossible to comply with the dictates of both sets of laws or where dual compliance is technically possible but state law creates an obstacle to fulfilling federal policy and goals.⁴English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (enumerating the three circumstances in which state law is pre-empted under the Supremacy Clause as (1) where Congress explicitly defines the extent to which its enactments pre-empt state law; (2) where state law regulates conduct in a field that Congress intended the Federal Government to occupy exclusively; and (3) to the extent that state law actually conflicts with federal law); see also Hendricks, supra at 70.

Application of Preemption Doctrine

Here, as in Harden, there is no explicit preemption. There is also no indication that at issue is a field that Congress intended the federal government to occupy exclusively, and, as in Harden, physical compliance is not implicated. Thus we, like the Harden court, look to whether subsection 409.920(2)(a) stands as an obstacle to the execution and accomplishment of the objectives and goals of Congress to determine whether preemption by implication should be found.⁵ For a number of reasons, we find that it does not.

First, we start by presuming against preemption, a presumption particularly strong because federal and state false claims legislation share common goals.⁶ See Hernandez v. Coopervision, Inc., 661 So.2d 33, 34 (Fla. 2d DCA 1995) (confirming that "there is a long-standing presumption against federal preemption of the exercise of the power of the states"); Forum v. Boca Burger, Inc., 788 So.2d 1055, 1061 (Fla. 4th DCA 2001) (recognizing a presumption against preemption); In re Pharmaceutical Industry Average Wholesale Price Litigation, 321 F.Supp.2d 187, 198 (D.Mass.2004) (confirming that the presumption against federal preemption of a state statute designed to foster public health has special force when it appears that the two governments are pursuing common purposes; that the "strong medicine" of federal preemption is not to be casually dispensed especially when the federal statute creates a program, such as Medicaid, that utilizes "cooperative federalism"; and that Medicaid is the paradigmatic program of cooperative federalism where the federal and state governments share a common goal) (citations omitted).

Second, although the federal health care false claims provision criminalizes the knowing and willful making of a false claim, this behavior is frequently prosecuted under 18 U.S.C. § 287, the Federal False Claims Act, legislation which, like subsection 409.920(2)(a), contains no express willfulness requirement:

False, fictitious or fraudulent claims

Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.

18 U.S.C. § 287 (emphasis added).⁷

Prosecution under the Federal False Claims Act has proceeded notwithstanding its lack of an express willfulness requirement because "[i]t is implicit in the filing of a knowingly false claim that the claimant intends to defraud the government, and hence...