Arrestable Offenses / Crimes under Fla. Stat. 409.920
S409.920 2a - FRAUD-FALSE STATEMENT - RENUMBERED. SEE REC #s 6965 6966 6967 - F: T
S409.920 2a4 - FRAUD-FALSE STATEMENT - FALSE STATEMENT MEDICAID PAY DOCUMENTS LT $10K - F: T
S409.920 2a4 - FRAUD-FALSE STATEMENT - FALSE STATEMT MEDICAID PAY DOCS $10K-$50K - F: S
S409.920 2a4 - FRAUD-FALSE STATEMENT - FALSE STATEMENT MEDICAID PAY DOCUMENTS $50K+ - F: F
S409.920 2a6 - FRAUD-FALSE STATEMENT - FALSE STATEMENT ON PROVIDER INFO LT $10K - F: T
S409.920 2a6 - FRAUD-FALSE STATEMENT - FALSE STATEMNT ON PROVIDER INFO $10K-$50K - F: S
S409.920 2a6 - FRAUD-FALSE STATEMENT - FALSE STATEMENT ON PROVIDER INFO $50K+ - F: F
S409.920 2b - FRAUD - RENUMBERED. SEE REC #s 6968 6969 6970 - F: T
S409.920 2c - FRAUD - RENUMBERED. SEE REC #s 6971 6972 6973 - F: T
S409.920 2d - FRAUD-FALSE STATEMENT - RENUMBERED. SEE REC #s 6974 6975 6976 - F: T
S409.920 2e - KICKBACK - RENUMBERED. SEE REC #s 6977 6978 6979 - F: T
S409.920 2f - FRAUD-FALSE STATEMENT - RENUMBERED. SEE REC #s 6980 6981 6982 - F: T
S409.920 2g - FRAUD - RENUMBERED. SEE REC #s 6983 6984 6985 - F: T
CopyCited 12 times | Published | Supreme Court of Florida | 2006 WL 1375138
...Young, Washington, D.C., on behalf of Sonnenschein Nath and Rosenthal, LLP; and Max R. Price and Colleen M. Greene, Miami, Florida, on behalf of Joel M. Berger, D.D.S., As Amici Curiae. QUINCE, J. We have on appeal a decision of the Third District Court of Appeal declaring invalid section 409.920(2)(e), Florida Statutes (2000), the "anti-kickback" provision of the Florida Medicaid fraud statute....
...Dentists, Dental Express, Inc., and Express Dental, Inc., three corporate entities providing dental services to children (hereinafter Dental Express). The information charged these individuals with conspiracy, racketeering, and Medicaid fraud under section 409.920(2)(e), Florida Statutes (2000)....
...[1] Thus, the defendants argued, the State's attempt to prosecute this federally protected activity was unconstitutional under the Supremacy Clause in article VI, clause 2 of the United States Constitution. Alternatively, the defendants argued that the undefined term "remuneration" in section 409.920(2)(e) was unconstitutionally vague as applied to employer-employee wages....
...aw. After hearing argument from the parties, the circuit court entered an order granting the defendants' motion to dismiss. The circuit court concluded that the State's attempt to prosecute the defendants under the unlawful remuneration provision of section 409.920(2)(e) was preempted by federal law and thus unconstitutional under the Supremacy Clause. The circuit court also held that the mens rea requirement in section 409.920(1)(d) was preempted by federal law and unconstitutional under the Supremacy Clause. Additionally, the circuit court agreed with the defendants' alternative argument that the State's construction of section 409.920(2)(e) as a criminal ban on the solicitation of commercial business would, absent an intent to defraud requirement not contained in the statute, violate the First Amendment and render the statute unconstitutionally vague as applied. The State appealed the circuit court's ruling to the Third District. The Third District agreed with the circuit court that there is an implied conflict preemption which renders section 409.920(2)(e) unconstitutional....
...Under federal law, the government must prove that the defendant acted with knowledge that his conduct was unlawful. In contrast, the Florida statute only requires that the defendant act knowingly. [2] The Florida statutory definition of "knowingly" in section 409.920(1)(d) includes mere negligence and consequently criminalizes activity that the federal statute intended to protect....
...f the appellees, who were the defendants in the circuit court. The State raises three arguments in its appeal to this Court. The State contends that: neither the federal Medicaid anti-kickback statute nor the federal safe harbor regulations preempts section 409.920(2)(e); the safe harbor regulations do not protect a "per head" payment scheme for the solicitation and referral of eligible Medicaid patients; and section 409.920(2)(e) does not violate the First Amendment and is not constitutionally vague....
...Instead, we look to the statutory differences between the federal and state laws to determine whether these differences warrant conflict preemption in light of the preemption principles explained above. Florida Anti-Kickback Statute and Preemption Section 409.920(2)(e), Florida Statutes (2000), which is included in the statute entitled "Medicaid provider fraud," makes it unlawful to: Knowingly solicit, offer, pay, or receive any remuneration, including any kickback, bribe, or rebate, directly...
...em, or service, for which payment may be made, in whole or in part, under the Medicaid program. A person who violates this subsection commits a felony of the third degree, which is punishable by imprisonment of up to five years and a fine of $5,000. § 409.920(2), Fla....
...State v. Harden,
873 So. 2d 352, 355 n. 1 (Fla. 3d DCA 2004). Because we conclude that the statute is preempted by the federal law, we do not reach these constitutional issues. CONCLUSION For the reasons stated above, we agree with the Third District that section
409.920(2)(e), Florida Statutes (2000), is preempted by federal law and thus unconstitutional under the Supremacy Clause....
...NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. NOTES [1] The federal statute specifies certain activities that do not constitute prohibited "illegal remunerations." See 42 U.S.C. § 1320a-7b(b)(3) (2000). Parallel administrative provisions are contained in 42 C.F.R. § 1001.952 (2005). [2] Section 409.920(1)(d) was amended by the Florida Legislature in 2004 to conform with the federal law on this point....
...llful" 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. § 409.920(1)(d), Fla....
CopyCited 10 times | Published | Supreme Court of Florida | 2007 WL 2002586
...FACTS AND PROCEDURAL HISTORY 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)....
...lished. 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....
...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....
...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). ANALYSIS I. Constitutionality of Medicaid Provider Fraud Statute 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....
...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 *772 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)....
...urchasing, 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)....
...ts an obstacle to the accomplishments of the purposes of the federal law. Id. at 493. The defendants in the present case repeat the argument that the charges based on the prohibition against filing a false statement in a claim for payment based upon section 409.920(2)(a) should be dismissed because this statute unconstitutionally conflicts with the federal false statements statute that contains the language "knowingly and willfully." The federal statute, 42 U.S.C....
...that the two governments are pursuing common purposes.") Harden,
938 So.2d at 486. Prior to our decision in Harden, the Third District decided State v. Wolland,
902 So.2d 278 (Fla. 3d DCA 2005), which involved the issue of the constitutionality of the false statements prohibition of section
409.920(2)(a). In Wolland, the Third District distinguished its earlier decision in State v. Harden,
873 So.2d 352 (Fla. 3d DCA 2004), aff'd,
938 So.2d 480 (Fla.2006), and found that the false statements prohibition in section
409.920(2)(a) was constitutional....
...The Third District upheld the false statements provision, reasoning that the mens real concern in Harden was not the same in respect to false statements because "one cannot negligently `knowingly make . . . [a] false statement . . . in [a] claim submitted to the agency . . . for payment.'" Wolland,
902 So.2d at 284 (quoting §
409.920(2)(a))....
...hich were not performed and that, therefore, the claims for payment contained *775 false statements. If the proof is that the defendants "were aware" that the statements in the claims for payment were false, we do not believe that the prohibition in section 409.920(2)(a) is unconstitutional as to such conduct by the defendants. The constitutionality of the false statement prohibition of section 409.920(2)(a) can and should be saved by severing the "should be aware" language from section 409.920(1)(d) as it pertains to section 409.920(2)(a)....
...Rubio,
917 So.2d at 400. For the reasons set forth in the analysis in the prior section of this opinion concerning the RICO predicate issue, we affirm the Fifth District's decision on this issue. CONCLUSION Thus, we reverse the Fifth District's determinations that section
409.920(2)(a) was unconstitutional and that the indictment was multiplicitous....
...llful" 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. § 409.920(1)(d), Fla....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 2004 WL 444154
...Estrada and Jane Hyatt Thorpe, as amicus curiae. Before COPE, GODERICH and SHEVIN, JJ. CORRECTED OPINION GODERICH, Judge. The State appeals from an order granting the defendants' motion to dismiss the information and declaring Florida's Medicaid Provider Fraud Statute, § 409.920(2)(e), Fla....
...d nine other defendants with racketeering, conspiracy to commit racketeering, and Medicaid fraud. Specifically, in Counts 3-9, the State alleged that the defendants violated the "anti-kickback" provision of Florida's Medicaid Provider Fraud Statute, § 409.920(2)(e), Fla....
...On January 10 and 31, 2003, the trial court heard arguments of counsel, and on February 18, 2003, the trial court granted Harden's motion to dismiss stating, in part: [T]he State's attempt herein to prosecute, as a category of unlawful "remuneration" barred by Section 409.920(2)[(e)], the wages paid by Harden's *354 business, Dental Express, Inc., (i.e., an employer) to certain of its employees for the purposes of soliciting and transporting Medicaid-eligible patients to Harden's dental facilities is preempted by both an express provision of the federal Medicaid Act, 42 U.S.C. § 1320a-7b(b)(3), as well as a parallel administrative "safe harbor" provision, 42 C.F.R. § 1001.952(i). Thus, the trial court applied implied conflict preemption analysis and found that section 409.920(2)(e), Florida Statutes (2000), was unconstitutional. Additionally, the trial court found that the mens rea requirement in section 409.920(1)(d), Florida Statutes (2000), as applied to section 409.920(2)(e), Florida Statutes (2000), was preempted by federal law and also unconstitutional. The trial court subsequently entered dismissal orders as to the other defendants. The State's appeal follows. The State contends that the trial court erred by declaring section 409.920(2)(e), Florida Statutes (2000), unconstitutional and by dismissing the defendants' informations....
...* * * (3) Paragraphs (1) and (2) shall not apply to * * * (B) any amount paid by an employer to an employee (who has a bona fide employment relationship with such employer) for employment in the provision of covered items or services.... At first glance, section 409.920(2)(e), Florida Statutes (2000), appears to track the language of the federal statute by making it unlawful to: (e) Knowingly solicit, offer, pay, or receive any remuneration, including any kickback, bribe, or rebate, directly or indir...
...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....
...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. Meadows,
304 F.3d at 1206. For these reasons, we conclude that the trial court properly found that there was implied conflict preemption and declared section
409.920(2)(e), Florida Statutes (2000), unconstitutional....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1993 WL 267375
...LAW AND ANALYSIS By statute, the Auditor General of Florida is given broad authority to investigate Medicaid fraud and to examine the records of certain health care providers. However, the authority to examine records does not extend to physicians. Section 409.920(10)(a), Florida Statutes (1991) states in relevant part that: (10) In carrying out his duties and responsibilities under this section, the Auditor General may: (a) Enter upon the premises of any health care provider, excluding a physi...
...Further, the court reasoned that "[w]ere they [the police] not allowed to utilize the assistance of experts to identify such property, then it would simply be impossible for law enforcement officers to execute a search warrant for the seizure of computer equipment and parts." Id. Initially, we do not believe that section 409.920(10)(a), and its exclusion of a physician's premises from inspections by the Auditor General, was intended to bar the Auditor General from assisting an authorized police agency in executing a warrant....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2005 WL 3555898
...nd 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....
...n 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....
...ecution 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....
...cause 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....
...ng false statements and paying kickbacks, Florida cannot criminalize the same behavior under a lesser standard. Medicaid Provider Fraud 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....
...(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 Clause [2] 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....
...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....
...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....
...Wolland,
902 So.2d 278 (Fla. 3d DCA 2005). In that case, as here, the defendant was charged with numerous counts of filing false Medicaid claims in violation of section 490.920(2)(a). Applying the analysis outlined in Harden, the trial court concluded that section
409.920(2)(a) was preempted by federal law and dismissed those counts....
...of preemption should have been rejected. In reaching its decision, the court noted there was no express preemption and no indication that Congress intended for the federal government to occupy this field exclusively. Thus the court looked to whether section 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. For a number of reasons, the court concluded that subsection 409.920(2)(a) was not preempted....
...cularly strong because the federal and state false claims legislation share common goals. Second, the court noted that the filing of a false Medicaid claim is frequently prosecuted under 18 U.S.C. § 287, the Federal False Claims Act, which, like subsection 409.920(2)(a), contains no express willfulness requirement....
...rge willfulness separately. Thus, the concern in Harden that the Florida definition of "knowingly" might encompass mere negligence, thereby criminalizing activity that the federal statute may have intended to protect, is not present when considering section
409.920(2)(a). "Simply put, one cannot negligently `[k]nowingly make ... [a] false statement... in [a] claim submitted to the agency... for payment.'"
902 So.2d at 284-285. As the court explained: Subsection
409.920(2)(a) is, therefore, in harmony with the principles applicable to prosecutions under the federal false claims enactments. By its terms, subsection
409.920(2)(a) proscribes presentation of a claim with knowledge that the claim is false and thereby precludes prosecution for unintended violations. Interpreting "knowingly" as implicitly including willful behavior does no more than give a fair construction to the term as used in subsection
409.920(2)(a)....
...irement...
902 So.2d at 285. The court then distinguished Harden and limited its application to that case: In sum, considering the objective of Congress to limit and punish health care fraud (footnote omitted) and considering the language used in subsection
409.920(2)(a), we conclude that notwithstanding the failure of that subsection to contain the term "willfully," the federal and state enactments regarding false claims are in harmony in purpose and effect, and the charges at issue should not have been dismissed as preempted by federal law....
...tion of "knowingly" applicable to the defendants, the state could prove these charges by simply showing the defendants should have been aware of the nature of their conduct. *392 By permitting prosecution based on what a provider should be aware of, section 409.920(2)(a) allows convictions for conduct that may be improper but was inadvertent....
...Thus, Florida's false statement provision conflicts with federal law just as much as the anti-kickback provision struck down in Harden. We respectfully disagree with Wolland that one cannot negligently "knowingly" make a false statement. This view misapprehends the impact of the "should be aware" language in section 409.920(1)(d). Under section 409.920(1)(d), "knowingly" may mean either actual knowledge or negligence....
...t apply. It seems to us that the Legislature was attempting to remedy the constitutional infirmity in the prior definition by redefining "knowingly" to correspond to the federal mens rea requirement. Unlike the statute prohibiting patient brokering, section 409.920 involves only Medicaid provider fraud....
...icaid patients. Thus Florida's lesser intent requirement clearly "stands as an obstacle to execution and accomplishment of the objectives and purpose" of the Medicaid program. We agree with the trial court that the prior definition of "knowingly" in section 409.920(1)(d) rendered section 409.920(2)(a) unconstitutional and counts 3-55 were properly dismissed....
...Thus, the agreement in Gulley, unlike the case here, was not unlawful. 3. Willfulness. The defendants contend that "willfulness" is required under Harden and without that requirement, the statute is unconstitutional. In Harden, the court held the anti-kickback provision of
409.920 was unconstitutional in part because it did not have a "willfulness" requirement. The defendants contend that section
817.505 is nothing more than a disguised anti-kickback statute and likewise must have a willfulness requirement. According to Wolland, Harden was based primarily on the lack of a "safe harbor" in section
409.920....
...t generally to solicit business. Section
817.505 merely prohibits the solicitation and referral of patients in return for payment, which seems to us to be a valid legislative objective, and does not prohibit routine advertising and marketing. Unlike section
409.920, section
817.505 does not pose the same constitutional concerns....
...itle of chapter 817 would render that language superfluous. Conclusion We affirm the striking of the patient brokering incidents from counts 1, 2 and 130 as they do not relate to fraud. We affirm the dismissal of counts 3-55 on the basis that former section 409.920(1)(d) rendered section 409.920(2)(a) unconstitutional....
CopyCited 6 times | Published | District Court, M.D. Florida | 2008 U.S. Dist. LEXIS 101608, 2008 WL 5246306
...10(b); Anderson v. Dist. Bd. of Trs. of Cent. Fla. Comty. Coll.,
77 F.3d 364, 366-67 (11th Cir.1996). [2] See also Doc. 16-2 (felony Information filed by Assistant State Attorney in the Sixth Judicial Circuit, Pinellas County, charging Burge with a violation of Section
409.920(2), Florida Statutes)....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2005 WL 1226059
...Counts 1 through 115 of the information alleged that on various dates *280 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....
...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, *281 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....
...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....
...e 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....
...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....
...d). 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 agenc...
...U.S.C. § 287). Thus, the fear articulated in Harden that the Florida definition of "knowingly" might encompass "mere negligence," thereby criminalizing activity that the federal statute may have intended to protect, is not present when considering section 409.920(2)(a). [8] Simply put, one cannot negligently "[k]nowingly make ... [a] false *285 statement... in [a] claim submitted to the agency ... for payment." § 409.920(2)(a), Fla. Stat. (2001). Rather, the language of subsection 409.920(2)(a) reflects the same standard which has been held to establish a violation of 42 U.S.C....
...Laughlin,
26 F.3d 1523, 1525 (10th Cir.1994) (citations omitted); United States v. Larm,
824 F.2d 780, 782 (9th Cir.1987)(observing that "to prove Medicaid fraud, the government must show a knowingly false statement of material fact made in an application for benefits from a federally approved state Medicaid plan"). [9] Subsection
409.920(2)(a) is, therefore, in harmony with the principles applicable to prosecutions under the federal false claims enactments. By its terms, subsection
409.920(2)(a) proscribes presentation of a claim with knowledge that the claim is false and thereby precludes prosecution for unintended violations. Interpreting "knowingly" as implicitly including willful behavior does no more than give a fair construction to the term as used in subsection
409.920(2)(a)....
...Courts, with little hesitation or division, found an implication of the requirement as to offenses that *286 were taken over from the common law"). [10] In sum, considering the objective of Congress to limit and punish health care fraud, [11] and considering the language used in subsection 409.920(2)(a), we conclude that notwithstanding the failure of that subsection to contain the term "willfully," the federal and state enactments regarding false claims are in harmony in purpose and effect, and the charges at issue should not have been dismissed as preempted by federal law....
...e"); North Port Bank v. State Dep't of Revenue,
313 So.2d 683, 687 (Fla.1975)(same). The order under review is therefore reversed and the cause remanded with directions to reinstate the charges. NOTES [1] Although not applicable to the instant case, section
409.920, was revised by Laws 2004, c....
...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. [2] Subsection 409.920(2)(e), Florida Statutes (2001) provides in relevant part: (2) It is unlawful to: ......
CopyCited 1 times | Published | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 3543, 1994 WL 133528
The Auditor General is then required, under section 409.-920, to refer criminal activity to the appropriate
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: May 18, 2023
...aud.”
Zen Group received periodic updates from the Medicaid
Fraud Control Unit of the Florida Attorney General’s Office, which
is responsible for determining whether prosecution is warranted.
See FLA. STAT. § 409.920(9)(d)....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: May 18, 2023
...aud.”
Zen Group received periodic updates from the Medicaid
Fraud Control Unit of the Florida Attorney General’s Office, which
is responsible for determining whether prosecution is warranted.
See FLA. STAT. § 409.920(9)(d)....
CopyPublished | Florida 4th District Court of Appeal
...Criminal charges arose from Defendants’ back billing
Medicaid for patients who never received the health care services
Cornerstone billed to Medicaid. Defendants were ultimately charged by
information with two counts: (1) Medicaid provider fraud, with a value of
$50,000 or more, pursuant to sections
409.920(2)(a) and (2)(b)1.c., Florida
Statutes; and (2) grand theft, with a value of $100,000 or more, pursuant
to sections
812.014(1) and (2)(a)1., Florida Statutes.
After a joint trial, Courts was found guilty of: (1) committing Medicaid
provid...
...[k]nowingly 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 or a
managed care plan for payment.
§ 409.920(2)(a)1., Fla....
...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.
4
§ 409.920(1)(d), Fla....
...de, 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 [2]
submitted to the agency or its fiscal agent or a managed care
plan for payment.
§ 409.920(2)(a)1., Fla. Stat. (2020). The “agency” is the Agency for Health
Care Administration. § 409.920(1)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
...Criminal charges arose from Defendants’ back billing
Medicaid for patients who never received the health care services
Cornerstone billed to Medicaid. Defendants were ultimately charged by
information with two counts: (1) Medicaid provider fraud, with a value of
$50,000 or more, pursuant to sections
409.920(2)(a) and (2)(b)1.c., Florida
Statutes; and (2) grand theft, with a value of $100,000 or more, pursuant
to sections
812.014(1) and (2)(a)1., Florida Statutes.
After a joint trial, Courts was found guilty of: (1) committing Medicaid
provid...
...[k]nowingly 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 or a
managed care plan for payment.
§ 409.920(2)(a)1., Fla....
...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.
4
§ 409.920(1)(d), Fla....
...de, 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 [2]
submitted to the agency or its fiscal agent or a managed care
plan for payment.
§ 409.920(2)(a)1., Fla. Stat. (2020). The “agency” is the Agency for Health
Care Administration. § 409.920(1)(a), Fla....
CopyPublished | Supreme Court of Florida
...purposely” be part of the “assembly of three or more persons, acting
with a common intent to assist each other in violent and disorderly
defined “willfully” to mean the crime “was committed with bad
purpose, either to disobey or disregard the law.” § 409.920(1)(d),
Fla....
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 11714, 2003 WL 21750273
...These changes became effective around the same time that this court issued its opinion in ‘X Hospital"; however, “X Hospital” was based on statutes in their 1997 form. Chapter 2000-163, § 6, at 953, Laws of Florida, added the phrase “including medical records relating to Medicaid recipients” to section 409.920(8)(b)....
...It now reads: (4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to: [[Image here]] (k) The Medicaid Fraud Control Unit in the Department of Legal Affairs pursuant to s. 409.920....
...Nor would the patients need a court order to protect the confidentiality of records obtained by the state, because the state is required to prevent their use for any reason beyond the “specific investigation for fraud,” unless the patient consents. § 409.920(7)(f)....
...They rely on Article IV, section 4(b) of the Florida Constitution and section
16.56(l)(a), Florida Statutes, which give the statewide prosecutor power, generally speaking, only when more than one judicial circuit is involved in the crime. Appellants argue that they operate only in Broward County. Section
409.920(7), Florida Statutes (2002), entitled “Medicaid provider fraud,” authorizes the attorney general to investigate Medicaid fraud and to refer violations to the statewide prosecutor....
CopyPublished | Florida 3rd District Court of Appeal | 2005 WL 3441231
...appellee. Before COPE, C.J., and RAMIREZ, and SHEPHERD, JJ. RAMIREZ, J. Willie Lawrence appeals from an order revoking probation and accompanying sentence for racketeering, with the predicate activity being a violation of the Medicaid fraud statute, section 409.920(2)(e), Florida Statutes. He was also charged with two substantive counts of Medicaid fraud, again in violation of section 409.920(2)(e)....
CopyPublished | Florida 4th District Court of Appeal
...he
defendant acted with an evil-meaning mind, that is to say, that he acted
with knowledge that his conduct was unlawful,” was misplaced.
In Harden, our supreme court held that the anti-kickback provision of
a different Florida statute, namely section 409.920(2)(e), Florida Statutes
(2000), was unconstitutional in part because it did not include a
“willfulness” requirement....
...section 1320a-7b(b) requires proof that “the defendant acted with
an evil-meaning mind, that is to say, that he acted with knowledge that
his conduct was unlawful.” Id. at 491 (citation omitted). A second
intertwined reason for the supreme court’s holding that section
409.920(2)(e) was unconstitutional was because section
409.920(2)(e)
contained no “safe harbor” exemptions. Id. at 492.
However, in this case, unlike section
409.920(2)(e), section
817.505(3)(a) contains “safe harbor” exemptions....
...2d at 776,
was faced with the argument that section
817.505 also is unconstitutional
because it likewise fails to impose a “willfulness” mens rea requirement.
The supreme court, contrary to its holding in Harden, adopted in Rubio
the Fifth District’s reasoning that section
817.505 remains constitutional
because, unlike section
409.920(2)(e) which lacked any “safe harbor”
exemptions, “[s]ection
817.505(3)(a) specifically provides that the statute
does not apply to any payment practice not prohibited by 42 U.S.C....
CopyPublished | Florida 3rd District Court of Appeal | 2006 WL 931696
...Roberto D. Stanziale, Ft. Lauderdale, for appellee. Before GERSTEN, RAMIREZ, and SHEPHERD, JJ. *441 PER CURIAM. Based on the parties' stipulation at the trial level as to the controlling effect of State v. Harden,
873 So.2d 352 (Fla. 3d DCA 2004) (finding section
409.920(2)(e), Florida Statutes, unconstitutional), appeal pending, No....
