MARSHAL: PLEASE RISE . HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA ISNOW IN SESSIO N.ALL WHO HAVE CAUSE TO P LEA , DRAW NOOER , GIVE ATTENT ION DRAW NEAR , GIVE ATTENTION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES , THE GREAT STATE OF FLORIDA AND THIS HONORA BLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SE ATED .
CHIEF JUSTIC E: GOOD MORNING LADIES AND GENTLEMEN, AND WELC OME TO THE FLORIDASUPREME COURT.THE FI RST CASE ON TODAY'SDOCKET IS STATE OF FL ORIDA VERSUS GABRIEL HARDEN ANDJUSTICE CANT ERO I S RECUSED ON THIS CASE. PARTIES READ Y? YOU MAY PROCEED.
MAY IT PLEASE THE COURT . I AM L OUIS HUBENER WITH THE OFFICE OF THE ATTORNEY GENERAL , REPRESENTING THESTATE OF FLORIDA IN THIS CASE . THE FACTS OF THIS CASE ARE SIMPLE. D ENTAL EXPRESS PROVIDED DENTAL SERVICES TO MEDICAID ELIGIBLE CHILDREN ANDVARIOUS OF ITS EMPLOYEES P AID VAN DRIVERS $ 25 FOR EACH MEDI CAID ELIGIBLE CHILD.
WOULD YOU, AS A PART OF Y OUR EXPLANATION OF THIS , TELL US WHAT , EXACTLY , HAPPENED IN THE TRIAL COURT , IN REGARDS TO THE IS SUE OF WHETHER THESE PEOPLE WERE EMPLOYEES.
WELL , THE DEFENDANTS FILED A MOTION TO DISMISS AN UNSWORN MOTION , RAISING THE , SEVERAL LE GAL ISSUES , AND SUBSEQUENTLY FI LED A SWORN M OTION TO DISMISS, ASSERTING THAT THEY WERE EMPLOYEES U NDER THE , AS CONTEMPLATED BY THE FEDERAL SAFE HARBOR.
AND YOU AS THE STATE, YOU FILED A RESPONSE IN OPPOSITION TO THE MOTION TODISMISS, AND YOU ACTUALLY RAISED THE ISSUE OF WHETHER THEY WERE BONA FIDE EMPLOYEES?
WE DENIED THAT BUT WE ALSO FILED A MOTION TO STRIKE THE MOTION TO DISMISS , FOR VARI OUS REASONS, BE CAUSE WE DIDN'T THINK IT PROPERLY S WORE TO ANYTHING. THAT WAS NEVER RULED ON , SO IN FACT , IT WAS NOT DECIDED BY THE JUDGE WH ETHER THESE PEOPLE WERE
I AM SOR RY FOR INTERRUPTING YOU, BUT THAT WAS IN MY M IND.
BUT J USTICE QUINCE RAISES THE PO INT THAT , FOR PURPOSES OF DECIDING WHETHER THIS STATUTE IS UNCONSTITUTIONAL , ARE WE TO AS SUME THAT THEY ARE BONA FIDE EMPLOYEES?
IT VIOLATED S E CTION 9.2-E OF 9.240 , AND THE COURTFOUND THAT IT WAS EXEMPTED TO THE FEDERAL ANTI-KICKBACK STATUTE.
IS THE STATE CONTENDING THAT ANY SOLICITATION AND PAYMENT OF A REFERRAL FE E SO TO SPEAK, IS UNLAWFUL , UNDER FLORIDA'S ANTI-KICKBACK STATUTE , AS WELL AS UNDER THE FEDERAL STATUTE?
IT IS UNLAWFUL UNDER THEFLORIDA , A ND IT IS UNLAWFUL UNDER THE FEDERAL.
NOW, IS THERE A CASE, BUTOF COURSE , IF IT IS UNLAWFUL , THE RE IS NO T AN ISSUE A BOUT , IF THE SAME CONDUCT IS UNLAWFUL , THEN THERE IS NOT AN ISSUE OF CONFLICT , AT LEAST ON THAT ISSUE .
I DON'T THINK YOU NECESSARILY EVEN NEED TO GETTO THE PREEMPTION ISSUE, TO REVERSE THE LO WER COURTS IN THIS CASE .
WH AT IS YOUR STRONGEST CASE FOR STATING THAT , UNDER , EVEN UNDER THE FEDERALSTATUTES, THAT KICKBACKS OR REFERRALS , I G UESS KICKBACKS SOUNDS L IKE S UCH A SINISTER W ORD BUT REFERRAL PA YMENT FOR BRI NGING SOMEBODY IN IS ILLEGAL?
WELL, FIRST OF ALL , THE S AFE A HAR BOR PROVISION THE SAFE HARBOR PROV ISION PROTECTS PAY MENTS MA DE IN A BONA FIDE EMPL OYMENT RELATIONSHIP TO AN EMPLOYEE,FOR THE PROVISION OF CO VERED ITEMS OR SERVICES, FOR WH ICH PAYMENT MAY BE MADE, IN WHOLE OR IN PART UNDER THE MEDICAID PROGRAM. IN OTHER WORDS, YOU HAVE TO BE AN EMPLOY EE, AND YOU HAVE TO BE PROVIDING SERV ICES FOR WHICH PAYM ENT MAY BE MADE IN WHOLE OR PART , UNDER THE MEDICAID PROG RAM . AND THE CONTENTION HERE, IS THAT THESE DRIVERS WERE GOING OUT , AND INFORMING PARENTS AND CHILDREN IN THE COMMUNITY, THAT THEY WERE ELIGIBLE FOR DENTAL SERVICES UNDER MEDICAID , O R LO CATING THOSE WHO WERE , TELLING THEM THAT THIS HAR DEN ENTERPRISE PROVIDED DENTAL SERVICES AND THEN TRANSPORTING THEM FOR T REATMENT, AT WHI CH POINT THE DRIVERS WERE PAID $25PER HE AD.
SO THERE WOULD BE NOT HING WRONG WITH EVERYTHING UP TO THE POINT OF THEM PAYING $25 PER HEAD. IN OTHER WO RDS NOTHING WRONG WITH SOLICITING TO SHOW THAT THIS PROVIDER ACCEPTS MEDICAID , THESE ARE THEIR SERVICES.
APPARENTLY NOT UNDER THE KICKBACK STATUTE ITSELF. THERE IS ANOTHER STATUTE, AND THIS WHOLE AREA IS DISCUSSED IN H HS ADVISORY OPINION 0 07 , WHICH IS IN THE APPENDIX TO OUR REPLY BRIEF , AND IT POINTS OUT THAT OFFERING SOMEBODY SOMETHINGOF VA LUE TO IN DUCE A SELF REFERRAL , IS, ALSO , A C IVIL OFFENSE UNDER ANOTHER PROVISION OF THE LAW. SO IT IS NOT SOMETHING THAT YOU REA LLY SH OULD BE DOING.
WHAT I SA ID IS PAYMENT OF IT, BUT THERE IS CERTAINLY THE FIRST A M ENDMENT SITUATION , WHICH
PAYMEN T FOR A REFERRAL IS THE KEY.
RATHER THAN JUST SOLICITATION THAT THIS IS AVAILABLE.
RIGHT.
SO I F THESE SAME PE OPLE WENT OUT AND TALKED TO THE SAME MEDICAID EL IGIBLE CLIENTS TO LD THEM AB OUT THE HARDEN DENTAL CLINIC, AND THEN THE PEOPLE CA ME IN WITHOUT THESE EMPLOYEES A CTUALLY TRANSPORTING THEM THERE, AND SAID MR . SO-AND-SO CAME BY AND TOLD ME I WAS ELIGIBLE FOR THESE MEDICAID PAYMENTS .
THAT IS FINE.
THEY CAME IN AND GOT THE SERVICES, AND THEN REMUNERATION THAT HARDEN WOULD THEN GET F ROM THESE EMP LOYEES IS BASED ON THE NUMBER OF PEOPLE WHO CAME IN. THAT WOULD BE I LLEGAL , ALSO.
RIG HT . R IGHT.
SO HOW FAR DO ES THIS GO? WHAT COULD A PE RSON LAWFULLY DO, IN THE SOLI CITATION OF BUSINESS BY EMPLOYEES?
THEY CAN ADVERTISE THEIR SERVICES. I THINK THEY CAN TELL PEOPLE THAT DR . HARDEN TR EATS , NOT DR. HARDEN BUT HARDEN DENTISTRY O PERATION , TRE ATS MEDICAID -HE WILL JIBLING CHILDREN AND MEDICAID CHILDREN AND ADULTS, IF THAT IS THE CA SE. THEY CAN ADVERTISE. THEY CAN PUT OUT FLIERS IN THE COMMUN ITY. BUT YOU CAN NOT
GO DO OR TO DOO R?
I AM SORRY.
COULD THEY GO DOOR TO DOOR WITH THOSE LE AVE LE T'S ? LEAFLETS?
I THINK SO.
YOU COULD PAY TO HAVE SOMEONE DO THAT.
I THINK YOU COULD PAY TO HAVE SOMEONE G O AND HA ND OUT FLIERS TO THE COMMUNITY.
AND THAT PER SON YOU COULDPAY TO TAKE THE FLIERS , COULD DRIVE THE PERSON DOWN TO THE CL INIC .
AND HE IS NOT PAID FOR THAT REFERRAL?
WELL , HE IS PAID TO T AKE THE FLIERS OUT.
WELL , IF YOU COULD DRAW A CONNECTION BETWEEN, I DON'T KNOW , I THINK
WHAT IS THE EVIL THAT
THE EVIL IS PAYING SOMEBODY FOR REFE RRAL , PAYING SOMEBODY TO BRING I N A PATIENT.
I UNDERSTAND THAT , BUT WHAT I S THE REASON THAT
POLICY?
FOR THE POLICY.
O K AY. THAT IS , ALSO , EXPLAINED IN THE ADV ISORY OP INION 0 07. YOU HAVE T O UNDERSTAND THAT WE ARE NOT JUST CONCERNEDWITH A DENTAL O F FICE HERE , AN IS OLATED DENTIST OFFICE OR DENTAL SERVICES AT ALL. YOU HAVE TO LO OK A T THE , THIS APPLIES TO THE WHOLE SPECTRUM OF MEDICAID PROVIDERS AND MEDICAL SERVICES. NOT JUST DENTAL SERVICES. AND WHEN YOU HAVE AN OPERATION LIKE THIS , THAT GOES OUT AND BRIN GS IN ALL OF THESE PATIENTS AND IS PAID , HHS HAS SAI D THAT THIS , THAT ARRANGEMENTS OF THIS SORT ARE FREQUENTLY PART OF ABUSIVE SCHEMES . THEY CAN BE UNDERTAKEN BY HOSPITALS , DOCT ORS , DENTISTS , ANYBODY WHO IS PROVIDINGSERVICES, AND IT LEADS TO INAPPROPRIATE STEERING OF PATIENTS, OVER UTILIZATION OF SERVICES.
WHAT IF HARDEN , INSTEAD OF OBTAINING THESE DRIVERS , THE WAY THAT THEY DID , GAVE A GRAN T TO A LOCAL COMM UNITY ORGANIZATION, TO BUY A BUS AND T O TRANSPORT THE I DEA THE GRANT WAS TO USE THEBUS, THEN , TO TRAN SPORT PAT IENTS IN A LOCAL HO USING PROJECT, TO THE HARDEN CLINIC, AND THEY D AVE THEM A GRANT SPECIFICALLY FOR THAT PURPOSE AND THEY GAVE THEM A GR ANT SPECIFICALLY FOR THAT PURPOSE AND THEY SUBSIDIZED THE TRANSPORTATION OF ALL OF THE ELIGIBLE FROM THE HOUSING PROJECT TO THE HARDEN CLI NIC . NOW, A CON DITION OF THE GRANT WAS
I THINK THAT IS P AYING FOR A REFERRAL
SO THAT WOULD BE IL LEGAL , UNDER THIS STATUTE.
WHAT MR. HARDEN COULD HAVE DONE OR A MEDICAID PROVIDER COULD DO , I DON'T KNOW OF ANY IMPEDIMENT TO THAT PROVIDER , ALSO, BEING A TRANSPORTATION PROVIDER , IF HE OR SHE ENROLLS IN THEPROGRAM AND GETS A PROVIDER NUMBER FOR THAT SERVICE AND PROVIDES TRANSPORTATION TO THE MEDICAID ELIG IBLE , BU T YOU KNOW, THE THING IS THERE , AND MAYBE THIS IS WHY I T WASN'T DONE , I S THAT THE UNIVERSE OF TRANSP ORTATION MEDICAID RECI PIENTS , IS S MALL OF TRANSPORTATION ELIGIBLE MEDICAID RECIPIENTS IS SMALL , COMPARED TO BEING ELIGIBLE , BECAUSETRANSPORTATION, AND THAT IS WHAT THIS SAFE HARBOR IS TALKING ABOUT , SOMETHING THAT IS PAID FOR , AND TO B E ELIGIBLE FOR TRANSP ORTATION , YOU HAVE TO HAVE NO OTHER MEANS OF GETTING TO THEDOCTORS OR DENTIST'S OFFICE. NOBODY CAN TAKE YOU. YOU DON'T HAVE YOUR OWN TRANSPORTATION. YOU ARE NOT ABLE TO USE PUBLIC TRANSPORTATION. SO IN THAT CASE , THE STATE WILL PAY A TRANSPORTATION PROVIDER TO BRING THESE PEOPLE .
BUT WE DON'T HAVE A QUESTION HERE OF WHETHER OR NOT THE HARDEN CLINIC OR ANY OF THESE PEOPLE , AC TUALLY B ILLED MEDICAID FOR ANY TRANSPORTATION SE RVICES.
NO.THERE IS NO CLAIM THEY DID THERE.IS NO CLAIM THAT HE WAS A TRANSPORTATION PROVIDER . BUT IF HE HAD WA NTED TO DO THIS, THEN HE SH OULD HAVE COMPLIED WITH THE LAW AND BEN ENROL LED IN THE PROGRAMAS A TRANSPORTATION PROVIDER.
BUT THERE IS, AL SO, NO CLAIM THAT THERE WAS OVER UTILIZATION OF SERVICES.
WELL , THAT IS IN THIS C ASE. BUT AS HHS POINTS OUT , ARRANGEMENTS OR SCHEMES O F THIS NATURE ARE FREQUENTLY ASSOCIATED WITH A B USIVE PRACTICES.
AND YOU KEEP ON REFERRING TO THIS ADVI SORY OPINION. I AM STILL CONC ERNED THAT THERE , REALLY, ISN'T ANYTHING DIRECTLY IN THE MEDICAID LAW THAT WOULD PROHIBIT THIS , BUT YOU ARE SAYING THE PLAIN LANGUAGE OF THE SAFE HARBOR PROVISION , IF READ IN CONT EXT , WOULDNOT ALLOW IT. IS THAT
R IGHT. BECAUSE THE EMPLOYEE HAS TO BE PROVIDING A SERVICE FOR WHICH PAYMENT MAY BE MADE IN WHOLE OR PART UNDER THE MEDICAID PROGRAM. NOW, IF HE HAD BEEN A TRANSPORTATION PROVIDER , THEN HE COULD HAVE BEEN PAID FOR THAT , AND THE EMPLOYEE COULD HAVE BEEN PAID ANY WAY HE WAN TED TO BE PAID.
WELL, THEN , UNDER THAT THE ORY, IF THE EMPLOYEE , THESE PEOPLE WHO WENT AND SOLICITED AND DROVE THEPEOPLE, IF THEY IN FACT , H AD OTHER DUTIES AT THE CLINIC, WHICH INCLUDED MAYBE DENTAL , THEY WERE A DENTAL ASSISTANT OR SOMETHING TO THAT E FFECT , WOULD THE S C HEME B E OKAY THEN?
NO. ABSOLUTELY NOT .
ON THE , ASSUMING THAT WE DON'T GET TO THIS ISSUE AND THE BASIS THAT THE TRIAL COURT, APPELLATE COURT FOUND THEIR TO BE AN UNCONSTITUTIONAL STATUTE, ON THE SE COND ISSUE OF THE MENS REA , DO YOU A GREE THAT THE AMENDMENT THAT THE STATUTE WOULD APPLY TO THESE INDIVIDUALS?
NO.
WHAT WOULD BE THE DIFFERENCE AS TO THE - -
ONE ELEMENT , IN THE U .S. VERSUS STAR KES CASE AND THE YOU-CON CASE, YOU WILL SEETHAT THE AND THE U-CONCASE, YOU WILL SEE THAT IN ONE CASE THE DOCTORS WERE BEING PAID BECAUSE THEY WERE RENDERING SERVICES THAT WERE COMPREHENSIBLE UNDER MEDICARE, MEDICAID , WHICHEVER IT WAS , AND THAT THEY WERE PAID FOR THE VALUEOF THE SERVICES NOT FOR THEVALUE OF THE REFERR ALS THAT THEY WERE ONLY TO PROVIDE TO THE HOSP ITAL. AS TO THE MENS REA ARGUMENT, THE LOWER COURT CONC LUDED THAT FLOR IDA LAW WOULD ALLOW PROSECUTION OF NEGLIGENT OR INADVERTENT COND UCT AND THAT WOULD BE AN OBSTACLE TO THE ACHIEVEMENT OF THE F UL L PURPOSES AND OBJECTIVES OF CONGRESS AND THEREFORE THE LAW WAS PREEMPTED. WELL, IN THE FIRST PLACE , I AM NOT S URE YOU EVEN NE ED TO G ET TO THE PREEMPTION QUESTION AGAIN HERE , BECAUSE THE DEFENDANTS WERE NOTCHARGED WITH NEGLIGENT OR INADVERTENT CONDUCT . THEY DO NOT CLA IM THEY WERE ACTING NEGLIGENTLY OR INADVERTENT LY. THEY HAVE ADMITTED THAT, THROUGHOUT THESE PROCEEDINGS THEY KN EW WHAT THEY WERE DOING. THEY WERE PAYING $25 TO THE VAN DR IVERS FOR EVERY ELIGIBLE CHILD THAT WAS BROUGHT IN. THAT IS NOT NEGL IGENT CONDUCT . SO THAT HAS NEVER BEEN AT ISSUE.I DON'T KNOW HOW IT GOT TO BE TREATED AS A SERIOUS MATTER IN THIS CASE, BECAUSETHAT IS NOT WH AT WE ARE DOI NG, AND WE WEREN'T TR YING TO PROSEC UTE THEM ON THE BASIS THAT THEY HAD DONE SOMETHING THAT WAS NEGLIGENT . SECOND, HOW EVER , IF THERE IS EMAPPLIED PREE MPTION , ITS IF THERE IS I MPLIED PREELMS , ITS EF FECT IS NEGLIGENT , ANDIN THIS CASE , THE CASE LAWTHAT WE WERE WE HAVE C ITED IN OUR BRIEF , IF A STATUTEIS PREEMPTED, IT IS ONLY TOTHE EXTENT OF THE CONDUCT, SO IF YOU LOOK AT THE PREVIOUS DEFINITION AND TAKE OUT THE WORDS "S HOULD BE AWARE" , WHICH IS ALL THE PRE EMPTION WOULD REQUIRE IF THERE IS PREEMPTION , IF THAT LANGUAGE I S DISREGARDED, THEN THE T ERM "KNOWINGLY" MEANS SOMEONE WHO WAS AWAREOF THE NA TURE OF HIS CONDUCT, AND THAT IT IS UNLAWFUL.
WHAT DOES WILLFUL ADD TO KNOWING?
WHAT DOES WILL FUL ADD TO IT?
Y ES.
THAT IS A GOOD QUESTION.I HAVE READ A LOT OF CASES , AND I AM NOT SURE THAT I HAVE A GOOD EASY ANSWER TO THAT QUESTION. BASICALLY WHAT IT MEANS IS THAT YOU IN TENDED TO DO SOMETHING UNLAWFUL . THAT IS THE U.S. V ERSUS STA RKES CASE, AND IT IS , IF YOU LOOK AT FOOTNOTE 13 , THEY CITE A HOS T OF CASESTHAT DO THE SAME THIN G. YOU INTENDED TO DO SOMETHING UNLAWFUL.
THAT WOULD BE THIS CASE, BECAUSE THEIR DEFENSE WOULD BE THAT WE TH OUGHT IT WAS LAWFUL , UNDER THE MEDICAID SCHEME.
YES. I SUPPOSE THEY CAN PUT THEIR INTENT IN AS AN ISSUE , BUT I THINK IF YOU T AKE OUT THOSE THREE WORDS AND YOU ARE LEFT WITH SOME BODY WHO KNOWS THE N ATURE OF HIS CONDUCT , W HICH IS UNLAWFUL , AND THAT FITS PERFECTLY WITH WHAT THE ELEVENTH CIRCUIT SAID IN THE U .S. VE RSUS STARKES CASE ABOUT THE FEDERAL LAW . IT MEANS YOU KN OW YOU ARE DOING SOMETHING UN LAWFUL. I DON'T CONC EDE FOR A MO MENT, H OWEVER, THAT PREEMPTION A PPLIES HERE OR S HOULD APPLY . FIRST OF ALL, BECAUSE IN 1972, WHEN THE FEDERAL ANTI-KICKBACK LAW WAS ENACTED , CON GRESS EXPRESSLY SAID OR IT WAS SAID IN A HOUSE REPORT , THAT THE FEDERAL PROVISIONS WERE IN ADDITION T O AND NOT IN LIEU OF PROVIS IONS O F STAT E LAW , AND THEY HAVE NEVER CHANGEDTHAT. THEY HAVE NEVER GONE BACK AND SAID SPECIFICALLY , THAT , WELL , WE INTENDED FOR THE STATE TO PROSECUTE THEN BUT WE ARE LIMITING THEM NOW. ANIMATER OF F ACT, WHEN THEY AN IMATER OF FACT, WHEN THEY AMEND AND , MA TTER OF FACT WHEN THEY AM ENDED THELAW AND ADDED SAFE HARBOR , THEY PUT IN THAT T HERE IS NO INTENTION TO AMEND STATE LAWAND THEY PUT IN THAT MEDICAID LAW RE QUIRES THAT STATES HAVE MEDICAID FRAUDUNITS , WHOSE PURPOSE IS TO PROSECUTE VIOLATIONS OF ALL APPLICABLE STATE LAWS REGARDING ANY AND ALL ASPECTS OF FRAU D! NOW , THAT IS ABOUT A S , THAT IS REMARKABLY CL EAR AND BROAD STATEMENT THAT THAT IS WHAT THE STATES ARE INTE NDED TO DO , PROS ECUTE THEIR O WN F RAUD LAWS. THE FEDERAL AGENCY, HHS , HAS ALSO SAID THAT STATE LAW IS NOT PREEMPTED.
LET ME ASK B E FORE YOU GET TOO FAR AW AY . I SEE THAT YOU ARE IN YOUR REBUTTAL TIME HERE. IF THES E, I F THESE TRANSPORTATION PEOPLE O R EMPLOYEES IN THIS CASE , ARE , REALLY , B ONA FIDE EMPLOYEES AS DEFINED BY THE FEDERALSTATUTE , AND THAT THERE IS NO PROHIBITION IN THE FEDERAL STATUTE FOR THIS KIND OF SOLICITATION , IT WOULD STILL BE A VIOL ATION OF THE STATE STATUTE , CORRECT?
ABSOLUTELY.
AND SO IS THERE, YOUR ARGUMENT IS, THEN , THAT THERE IS NO PROBLEM WITH THEFACT THAT THE STATE STATUTE DOES NOT INCORPORATE ANY OF THE SAFE HARBOR PROVISIONS OF THE FEDERAL STATUTE.
YES . CONGRESS HAS SIMPLY ALLO WED , IF YOU ACCEPT THEIR AR GUMENT , THAT THE STATES MAY PROSECUTE, WHERE THE FEDERAL GOVERNMENT DOESN'T.
AND SO A PROVIDER WHO IS LEGITIMATELY OPERATING UNDER THE FEDERAL STATUTE , CAN STILL BE PROSECUTED IN STATE COURT, FOR THE SAME CONDUCT THAT IS LEGITIMATE UNDER FEDERAL STATUTE.
YES. AND I DON'T THINK THAT I S A BIG PROB LEM , BECAUSE YOU HAVE 50 STATES. I DON'T KNOW HOW MANY ARE IN THE MEDICAID PROGRAMS, BUTYOU HAVE TO ASSUME THAT THERE ARE VARIATIONS AND DIFFERENCES AM ONG ALL THE STATE LAWS, AND WE HAVE TRIED TO POINT THAT OUT IN THE APPEND IX , TO OUR REPLY BRIEF, SO THAT A PROVIDER IS S IMPLY OBLIGATED TO BE AWAREOF THE LAW IN THE STATE IN WHICH HE IS OPERATING . YOU CAN'T EXPECT
YOU ARE IN YOUR REBUTTAL, IF YOU WANT TO SAVE YOUR T IME.
THANK YOU.
MAY IT PLEASE THE COURT. RICHARD ST RAFER FOR GABRIEL HARDEN THE APPELLEE.
I UNDERSTAND YOU ARE GOING TO GIVE MR . TURNER FIVE MINUTES.
CORRECT.
AND THE LIGHT WILL COME O N.I WILL LEAVE IT T O YOU ALLTO MAKE SURE YOU K EEP TRACKOF TIME .
THE STATE HAS MADE TWO ALTERNATIVE ARGUMENT.FIRST , THE STATE CONTENDS THAT STATE LEGISLATURES ARE FREE T O CRIMINALIZE ALL THE CONDUCT EXCLUDED FR OM CRIMINAL AND CI VIL SANCTIONSBY SIX STATUT ORY EX EMPTIONS AND NOW 22 SAFE HARBOR S THAT THE FEDERAL SYSTEM HAS , OVER THE COURSE OF YEARS , DEVELOPED TO DEFINE WHATKIND OF FINANCIAL ARRANGEMENTS ARE BEN BENEFICIAL TO THE PROGRAM ARE BENEFICIAL TO THEPROGRAM AND THEREFORE SHOULD BE ENCOURAGED . SECOND, THE STATE ASS ERTS THAT, EVEN IF THE STATECAN'T DO THAT, THAT HARDEN DOES NOT FIT WITHIN THE EMPLOYEE/EMPLOYER EXCE PTION .
TO ME , THE MOST INTERESTING PART OF HIS ARGUMENT , AND HE IS BASICALLY SA YING THAT, IN ORDER TO FIT INTO THE EMPLOYER /EMPLOYEE RELATIONSHIP, THAT THE EMPLOYEE HAS TO BE EN GAGED IN SERVICES THAT ARE CO VERED BY MEDICAID , AND WHAT IS YOUR ANS WER TO THAT?
THAT IS A TOTAL MISREADING OF THE LANGUAGE. THE LANGUAGE OF THE , BOTH THE EXCE PTION IN THE SAFE HARBOR SAY THAT THE EMPLOYEE MUST BE HELPING ASS ISTING IN FURNISHING COVERED SERVICES. WHAT THEY P RIEST TWIS THAT TO MEAN IN A WHAT THEY TWIST THAT TO M EAN IN A VERY NARROW WA Y IS TO SAY THAT ONLY THE NURSES AND DOCTORS WHO CAN BILL THEIR SERVICES TO MEDICAID , CAN BE COVE RED AS EMPLOYEES. THERE IS NOTHING IN THE REGULATION THAT SAYS THAT IT SHOULD BE THAT NARROW.IN FACT , B OTH THE PROPOSED SAFE HARBOR FOR EMPLOYEE , AND THE FINAL ORDER , FINALRULES THAT CAME OUT, IN BOTH OF THOSE, THE OIG EXPRESSLY STATED THAT THE EMPLOYER'S SAFE HARBOR WAS TO, QUOTE , PERMIT AN EMPLOYER TO PAY AN EMPLOYEE IN WHAT EVER MANNER H E OR SHE C HOSE FOR HAVING THAT EMPLOYEE ASSIST IN SOLICITATION OF PROGRAMBUSINESS. NOW , AN EMPLOYER PAY S AN EMPLOYEE TO SOLI CITED PROGRAM BUSI NESS , IT IS NOT PROHIBITED. SO IT IS DIRECTLY CONT RARY TO THE LA NGUAGE IN BOTH THE SAFE HARBOR AND THE FINAL COMMENTARY . IT IS ALSO CONTRARY TO, IN 2003 THE OIG PA SSED A REGULATION OR PROMULGATED A REGULATION FOR PHARMACEUTICAL MANUFACTURES , IN WHICH THEY SAID THAT SALES AGENTS COULD BE , COULD FALL WITHIN THE EMPLOYER SAFE HARBOR. NOW, SALES AGENTS OBVIOUSLY ARE NOT B I LLING THEIRSERVICES TO MEDICAID, SO THEIR CONSTRUCTION OF THIS SAFE HARBOR I S TOTALLY CONTRARY TO THE OIG'S OWNSTATEMENTS ABOUT IT . NOW , EVEN IF YOU IGNORE THELANGUAGE OF THE OIG , YOU GETTO THE ABS URD CONTQUENCESHERE. WHAT I F A DO CTOR WERE TO SEND OUT CA RDS REMINDING PATIENTS TO GET THEIR FLUSHOTS. I AM SURE THE DOCTOR ISN'T TYPING THOSE CARDS OUT. THEY ARE PAYING A RECEPTIONIST OR SECRETARY TO TYPE THOSE CARDS AND MAIL THEM TO PERSPECTIVE PA TIENTS AND SOLICIT THEM TO COME IN AND GET THEIR FLU SHOT. U NDER THAT , PAYING THE EMPLOYEE IS A CRIME.
IF THEY WERE PAID BASED ON HOW MANY PAT IENTS CAME IN , BUT I DI DN'T HEAR HIS ARGUMENT TO B E THAT IT WASUNLAWFUL TO SOLICIT . IT WAS THAT IT SHOULDN'T BE ON A KICKBACK B A SIS, THAT IS ON A PER-HEAD BASIS, BECAUSE THAT COULD LEAD TO, YOU KNOW , THE PO TENTIAL , YOU SEE THAT
I THIN K THEY ARE ARGUING BOTH THOUGH.THEY ARE TRYING TO CONSTRUE THE SAFE HARBOR AS ONLY COVERING THE EMPLOYEE, IF THE EMPLOYEE IS, CAN BILL THEIR SERVICES. THEY ARE ALS O, THEIR FALLBACK PO SITION IS THAT YOU CANNOT PAY ON A COMMISSION BASIS, WHI CH, ALSO, IS CONTRARY T O THE COMMENTARY IN THE OIG FINALRULE, BECAUSE THERE WAS A SPECIFIC QUESTION AS KED A BOUT WHETHER YOU COULD PAYA PART-TIME EMPLOYEE SOL ELY ON A COMMISSION BASIS, AND THE OIG SAID YES.
LET ME ASK YOU JUST AQUESTION ON HOW B R OAD YOUR PRINCIPLE IS THAT YOU ARE DISCUSSING . ARE YOU SAYING THAT THE STATES WOULD BE PRE CLUDED FROM CRIMINAL IZEING OR HAVING A STATUTE THAT WOULD PROHIBIT ME FROM JUST GOING AND GETTING A BUS, ROUNDING UP SOME FOLKS , T AKING THEM OVER HERE TO G O VERNOR S QUARE IN MIAMI-DADE LAND MA LL , AND THEN ALL OF THE MEDICAID PROVIDERS WOULD DO KO IN AND , WHOEVER WOULD WOULD COME IN AND, WH OEVER WOULD PAY ME THE HIGH EST PER HEAD COULDTHEN TAKE THAT BUS LOAD OF PATIENTS AND THAT COMMISSION M ODE AND ME ANS OF OPERATION, IS BE YOND ANY KIND OF STATE PROHIBITION OR RESTRICTION UNDER THIS CO DE. IT SEEM S THAT IS HOW FAR WE ARE GOING WITH THIS.
YOUR HONOR , I THINK THEREIS ROOM FOR THE STATE TO PROHIBIT SPECIFIC TYPES OF ABUSIVE EMPLOYER /EM PLOYEE RELATIONSHIPS FOR TYPES OF PAYMENTS. THEY COULD, PROB ABLY , PASS L AW S - -
THAT IS THE COMMISSION THAT YOU WERE JUST ARGUING THAT, WE ARE PAYING A PER-HEAD COMMIS SION ON EACH ONE OF THOSE.
LET'S BACK UP. THIS IS A CRIMINAL CASE. R ULE OF LIN ITY APPLIES. THERE IS NO REGULATION IN PLACE, OTHER THAN THEIR BROAD
YOU ARE SAYING IT IS PROHIBITED. W E ARE NOT DISCUSSING WHETHER IT IS IN PLACE. THAT IS WHAT WE ARE DISCUSSING, THAT T HEY CANNOT
THAT IS WHAT I AM SAYING. IF THERE ISN'T A S PECIFIC STATE REG ULATION THAT INCLUDES A SPECIFIC PR ACTICE AND THERE IS A BROAD FEDERAL SAFE HARBOR THAT FIT S THE CONDUCT IN A CRIMINAL CASE, THEN WE ARE PROTECTED. IF THE STATE WANTS TO PASS A LAW THAT SAYS YOU CAN'T GO INTO A NURSING HOME AND SOLICIT FACE TO FACE WITH AN ELDERLY PERSON OR GO TO A KID AND SOLICIT THE CHILD , THOSE KINDS OF LAWS, I THINK , WOULD BE PROP ER.
LET ME GO BACK AND ASK ME QUESTION, THEN, THAT COMMISSION PAYMENT, IN THE HYPOTHETICAL THAT I JUST RELATED TO YOU , IS THAT COMMISSION PAYMENT PROT ECTED , AND THAT IS WHAT YOUR ANSWER IS?
A COMMISSION PATIENT CURRENTLY ARE PROTECTED.
PROTECTED.
THE BIGGER QUESTION IS COULD , OR ANOTHER QUESTIONIS, COULD THE STATE PREC LUDE CERTAIN SPECIFIC TYPES OF PROGRAMS, AND THEY COULD .
YOUR SUBMISSION, I AM SORRY . I JUST WANTED T O MAKE SURE I FOLLOW-UP ON THIS. DOESN'T THE COMMISSION, HOWEVER , HAVE TO BE PAID TO SOMEONE IN AN EMPLOYEE /EMPLOYER RELATIONSHIP?
CO RRECT .
S O JUST ANY JOE B LOW WHO YOU HAVE NO EMPLOYEE EMPLOYER RE LATIONSHIP WITH , YOU COULD NOT PAY THEM ON A COMMISSION BASIS, COULD YOU ?
THAT'S CORRECT . NOT ONLY YOU COULD PAY AN EMPLOYEE
HERE APPARENTLY THERE IS A CONCESSION OF THAT RELATIONSHIP, SO THAT GOES AN AW FUL LONG WA Y IN WHAT WE ARE TALKING ABOUT THIS MORNING , DOESN'T IT?
YES.
IT IS ALMOST CONTROLLING, ACTUALLY, W HEN YOU COME RIGHT DOWN TO IT.
I BE LIEVE SO, AND HONESTLY THERE IS L O TS OF LEGISLATIVE HIS TORY ABOUTNOT , THE SAFE HARBORS WERE NOT MEANT T O EX TEND NECESSARILY TO INDEPENDENT CONTRACTORS.THE OIG WAS NOT PREPARED TO DO THAT , BUT THEY WERE PREPARED TO DO IT FOR EMPLOYEES, BECAUSE EMPLOYEES WERE DEEMED TO BE UNDER ENOUGH SUPERVISION B Y THE EMPLOYER , TO MAKE THE SAFE HAR BOR BENE FICIAL .
M Y QUESTION I S , A RE YOU SAYING THAT, UNDER THE FEDERAL MEDICAID STATUTE, THAT THIS TYPE OF CONDUCT IS ACTUALLY ENCOURAGED? THAT IS WHAT THE HARDEN C LINIC WAS EN GAGED IN.
YES. EMPLOYEE/EMPLOYER PAPTS TO SOURCE OF BUS INESS I S - - PAYMENTS TO SOURCE OF BUSINESS IS DI RECTLY PERMITTED , AND LET ME TALK BRIEFLY BECAUSE I THINK THIS W ILL ANSWER YOUR QUESTION THE STATE RE LIES ON ADVISORY O PINION 00 7 THAT HAS A COMMENT ABOUT PAYING DRIVERS ON A PER -HEAD BASIS , SOMETIMES COULD BE AN ABU SIVE PROCEDURE AND WE AGREE WITH THAT , BUT THE SAME OPINION SAYS THAT FREE TRANSPORTATION I S AN IMPORTANT AND BENEFICIAL THING FOR THE PROGRAM , AND IN THE FACTS OF THIS CASE , THERE IS NO , T HERE IS NO RISK OF OVER UTILIZATION O F SERVICES. WHICH WOULD BE A RISK. IF SOMEONE WE NT IN AND COULD GO IN AND PAY SOMEONE TO GO INTO A NURSING HOME AND SELL WHEELCHAIRS ON A PER COMMISSION BASIS, THERE IS ARISK OF OVER UTILIZATION. IN THIS C ASE, THE CHILDREN THAT ARE , THE OBBASE , THE PATIENT BASE IN THIS CASE , ARE CHILD REN THAT THE STATEIS REQUIRED TO PROVIDE PERIODIC CLEANING , T EETH CLEANING SERVICES , SO THEREIS, YOU CANNOT HAVE OVER UTILIZATION . THEY ARE REQUIRED TO PROVIDE THE SERVICE, AND IF THEY DON'T DO, IT WHICH I S WHAT IS HAPPENING HERE AND TH ERE IS A 19 96 OIG REPORT THAT SAYS IT IS NOT HAP PENING , THERE SIMPLY IS NOT RISK OF OVER UTILIZATION OF A SERVICE THAT THE STATE ISREQUIRED TO PROVI DE, SO THE OIG ADV ISORY OPI NION THAT THEY RELY ON , SPECIFICALLY SAYS THAT WE SHOULD LOOK A T THESE CASES ON ACASE-BY-CASE BASIS, TO SEE WHETHER THE TYPE OF PAYMENT PRACTICE , WH ATEVER , HAS ARISK OF AB USE. IN THIS CASE , IT HAS NO RISK OF ABUSE , BECAUSE OF THETYPE OF SERVICE THAT IS B EING PROVIDED . NOW , BACK UP T O THEIR BROADER ARGUMENT THAT THE STATE CAN HAVE THE RIGHT TO CRIMINALIZE THE SAFE HARBORS , I THINK THAT IS A CLEAR CONFLICT PREEM PTION. WE CANNOT HAVE 51 B O SSES DEFINING WHAT TYPE OF COMMERCIAL PRA CTICES ARE LEGITIMATE AND BENEFICIAL IN THIS ERA O F NATIONWIDE HEALTH CARE PRACTICE.
COULD WE ASK OR MAKE AN INQUIRY. IT SEEMS AS THOUGH AT MULTIPLE P LACES , CERTAINLY FED ERAL LAW WITH REGAR D TO HEALTH CARE AND STATE LAW WITH REGARD TO HEALTH CARE, COME INTO CONFLI CT. IT IS NOT JUST IN THIS SITUATION.IT IS WHAT IS COVERED, WHAT IS NOT COVERED, WHAT THE STATES HAVE TO COVER. HOW FAR DOES YOUR PRINCIPLE GO THAT FEDERAL LAW M UST BE CONSIDERED AS AT L E AST IMPLIEDLY PREEMPTING WHAT THE STATE CAN DO?
I THINK WHERE THERE IS A DIRECT CONF LICT BETWEEN A PROVISION IN THE FEDERAL STATUTE , L IKE THERE IS HERE, THEN THE STATE PROCEDURE HAS TO GIVE WAY. THE CASES THAT THE STATE RELIES ON ARE IN SITUATIONS WHERE THERE IS FEDERAL ANDSTATE LAW BUT THERE ISN'T SUCH A DIRECT CON CONNFLICT , AND THAT IS THE THERE IS SUCH A DIRECT CONFLICT , AND THAT IS THE LAW OF PREEMPTION SPECIFICALLY. THEY DEFINE WHAT THE F EDERALGOVERNMENT WANTS TO S AY IS LEGITIMATE, AND THE WAY TO LOOK AT THIS , I THINK THEBEST EXAMPLE IS IN THE MANDATORY EXCLUSION PROVISION, BECAUSE IF YOU , I F A DEFENDANT IS CONVICTED OF A STATE OFFENSE FOR ESSENTIALLY CONDUCT THAT IS PROPER UNDER THE FEDERAL SAFE HARBOR , IF THEY ARE CONVICTED OF THE STATE CRIME , THE FEDERAL GOVERNMENT MANNED TO RL LY MANNEDTORILY BARS YOU FROM THE FEDERAL PROGRAM T CONVICTS YOU AND THEN BARS YOU FROM THE FEDERAL PROGRAM FOR THE SAME CONDUCT. IT CAN'T BE A PART OF THE LAW .
IT WOULD AT LEAST HE LP YOUR CLIENT, MAYBE NOT TO THE EXTENT THAT YOU WOULD WANT, IS IF THE MENS REA INCLUDED WILLFULLY, WHICH WOULD MEAN THAT THERE WAS A S PECIFIC INTENT TO VIOLATE THE LAW.
CORRECT.
AND YOUR CLIENT SAID , LISTEN, THIS I S NOTSOMETHING THAT WE DID THIS IN THE FRONT. WE DID IT FOR ALL THESE REASONS.THEN FOR THAT , THAT WOULD BE AWAY TO BASI CALLY GIVE SOME BENEFIT TO WHAT THE STATE IS TRYING TO DO IN THE LONG-RUN, BUT IF YOU ARE OP ERATING WITH THE STATE , IT WOULD NOT BE SUBJECT TO PROSECUTION.
I THINK THE PO INT IS THE WILLFULNESS IS KNOWINGLY VIOLATING THE LAW , AND THE RECORD IN T HIS CASE BELOWSHOWS THAT JU DGE M ILLER WASGIVEN AN EMPLOYMENT PACKAGE TO SHOW THE EXTENT TO WHICH HARDEN'S COMPANY WENT TO MAKE SURE THAT THE DR IVERS WERE EMPLOYEES AND DID BACKGROUND CHECKS , WH ETHER THEY HAD CHILD ABUSE PROBLEMS. THEY DID EXTENSIVE BACKGROUND FOR THE PREC ISE REASON THAT THEY WERE TR YINGTO FIT WITHIN WHAT THEY THOUGHT WAS THE EXCEPTION.
WERE THEY PAID FOR OTHER THI NGS THAN FOR THE PIC KINGUP OF THE MEDICAID -ELIGIBLE CHILDREN?
THEY WERE PAID FOR , A LSO , EXPLAINING TO THE PARENT WHAT THE PROGRAM WAS.
SO THEY WEREN'T REALLY, I MEAN, NOW , E VEN THOUGH HE HAS CONCEDED FOR THE PURPOSE OF THIS CONSTITUTIONAL CHALLENGE , THEIR BONA FIDE EMPLOYMENT RELATIONSHIP , IT WASN'T AS IF THEY WERE PEOPLE THAT WERE ACTUALLY EMPLOYED DOING OTHER THINGINS THE HARDEN CLINIC THAT WERE SENT OUT THINGS IN THE HARDEN CLIN IC THAT WERE A LSO SENT OUT TO DO THIS?
NO. THIS IS T HEIR J OB FUNCTION. THE THE STATE ALSO RELIED ON A PREEMPTION ABOUT THE OIG REPORT. I THINK THE STATE PO INTS OUTTHAT THE STATE LAWS IN THIS AREA SI MPLY RECOGNIZE THAT THERE IS ROOM FOR A STATE, IF THEY SO CH OOSE , TO PRECLUDE SPECIFIC T YPES O F ABUSIVE PRACTICES , SUCH AS THE PERSON GOING TO THE HOSPITAL AND GOING TO SOMEBODY'S BED AND TRYING TO SELL THEM SOME THING. THOSE TYPES OF THINGS COULD BE P ASSED BY THE STATE , BANNING EMPLOYEE/EMPLOYERPAPTS BUT IT WOULD NOT NECESSARILY PRO PAYMENTS, BUT IT WOULD NOT NECESSARILY PRO DUCE THE SAME TYPE OF CONFLICT THAT WE HAVE HERE.
SO IT IS NOT REAL LY THAT THE STATE IS PROHIBITED FROM VARYING FROM THE FEDERAL MEDICAID STATUTE. IT IS THE EXTENT TO WHICH THEY VARY , AND THAT BECOMES A MUCH M ORE DIFFICULT ARGUMENT , BECAUSE AGAIN , YOU ARE NOT SAYING THAT THE TWO STATUTES HAVE TO BE IDENTICAL.
NO. THE PROBLEM IN THIS CASE IS THE STATE DIDN'T DO THAT. THE STATE JUST GOT RI D OF ALL OF THE SAFE HARBORS , A LLOF THE EXEMPTIONS AND IS PROSECUTING, DE SPITE THE BROAD FEDERAL EXE MPTIONS , AND THIS IS A CRIM INAL CASE WHERE THE STATE SHOULD HAVE TO, IF THEY WANT TO L I MIT THIS , OUG HT TO PASS LAWS AND NOT REL Y ON SOME OBLIQUE LANGUAGE IN SOME ADVISORY OPINION LETTER.
THE STATE STATUTE COULDN'T BE CLEARER THAT THIS IS NOT AL LOWED.
I THINK IT IS V ERY , VERY BROAD.
THERE IS NO AMBIGUITY IN THE STATE STATUTE.
CORRECT. IT WOULD PROHIBIT EV ERY TYPE OF PRACTI CE.
SO THE HARDEN CLINIC , SO THE RULE OF LINI TY THAT YOU ARE SPEA KING ABOUT, DO ESN'T APPLY TO THE STATE STATUTE.
IT APPLIES TO THE EXTENT THAT, IF YOU ARE OPERATING U NDER PARALLEL SYSTEMS ANDTHE FEDERAL GOVERNMENT IS SAYING THIS IS LEGAL AND THE STATE HAS A BROAD STATUTE, HOW DO YOU KN OW WHETHER THE STATE INTENDED TO COVER YOUR CONDUCT , ESPECIALLY WHEREYOU HAVE , BY THE WAY , THE PATIENT BROK ERING STATUTE , WHICH WOULD , ALSO , COVER THE CONDUCT IN THIS CASE, BUT EXPRESSLY DOES INCORPORATE THE FEDERAL STATUTE . SO EVEN IF YOU HAVE A STATE LAW, YOU HAVE A DIRECT CONFLICT BETWEEN STATUTES. THE STATE BROKERING STATUTE DOES SPECIFICALLY INCORPORATE THE FEDERAL PROTECTIONS.
WHAT IS THE STATUTE NUMBER YOU ARE REFERRING TO?
18.5 05 SUB SECTION 3 , DISCUSSED B Y JUDGE MILLER,IN FACT , IN HIS OPINION.
YOU ARE IN YOUR TIME.
I SEE. THANK YOU .
AS I SEE THIS CASE, IT IS NOT A QUESTION OF F I ELD PRO EMTION. I THINK THIS IS PRE EMPTION FORM I THINK THIS IS A POSSIBILITY OF COMP LIES F IELD PREE LMS. YOU CANNOT E X PECT PROVIDERSTO BE PROHIBITED IN A FELONY SENSE FROM FEL ONY CONVICTION, FROM DOING THAT IN A FEDERAL PROGRAM, A FED ERALLY FU NDED PROGRAMWHICH THE FEDERALLY FUNDED PROGRAM ALLOWS. THERE IS A DIRECT INABILITY TO COMPLY WITH BO TH STATE LAW AND FEDERAL LAW. THAT IS THE PROB LEM.
IS THIS PROGRAM SOLELY FEDERALLY FUND ED?
NO, SI R.IT IS 60 PER CENT FLORIDA , FEDERALLY FUNDED, BUT THE FEDERAL HARBORS APPLY WHEN YOU HAVE ANY FEDERALLY F UNDED PROGRAM.
SO HOW DOES THAT RELATE TO THE PREEMPTION PROGRAM AND A FACT THAT A SIGNIFICANT PORTION OF THE MONIES FOR THE PROGRAM ARE STATE?
BECAUSE THE FEDERAL LAWS APPLY TO ANY FEDERALLY FUNDED PROGRAM.
THERE IS A POSSIBILITY OF DUAL COMPLIANCE . ALL THEY HAVE TO DO IS NOT DO THIS AND THEY ARE IN COMPLIANCE WITH BOTH STATUTES. ANOTHER PROBLEM IS , OURCLIENTS, THIS IS WH Y WE ARE H ERE, OUR CLIENTS ARE IN 50 STATES. WE COMPLY WITH FEDERAL LAW , PAYMENT PRACTICES THAT ARE SANCTIONED AND APPROVED. AND IF YOU HAVE GO T TO COME INTO EVERY STATE AND HAVE DIFFERENT PAYMENT PRACTICE APP ROVED , THAT IS A M A JOR PRO BLEM. WE HAVE A RI GHT T O RELY ON CONTROLLING THE PARAMOUNT FEDERAL LAW THAT T ELLS US WHAT WE CAN DO IN A PAYMENT PRACTICE. I THINK THIS GOES TO JUDGE LEWIS'S IN QUIRY . JUDGE , WE ARE NOT TAKING THE POSITION THAT THE STATE CAN NOT HAVE A BRO ADER LAW THAT, FOR EX AMPLE , WOULD COVER AN ABUSIVE SCHEME. THAT, IF THIS IS AN ABUSIVE SCHEME THAT WAS BEING CHARGED HERE, T HERE WOULD BE NO PROBLEM. STATE LAW WOULD CONT ROL. YOU WOULD HAVE IT BE YOND THE PARAMETER OF THE EXP RESS ALL OWED SAFE HARBOR. WHAT WE HAVE GOT IS A PAYMENT PRACTICE , PURE AND SIMPLE! A PERMIS SIBLE PAYMENT PRACTICE , UNDER FEDERAL LAW, IN A FEDERAL PROGRAM, THAT IS NOW SUDDENLY CONVERTED , BECAUSE THE STATE LAW IS NOT SENSITIVE TO THE STATE HARBORS , I NTO A FELO NY. THAT IS WRONG, AND I THINK THAT THE EXPLANATION THAT YOU HAVE GOT HERE , IS WHEN YOU TURN TO THE FACT THAT THERE IS A LA CK OF SENSITIVITY. WHAT YOU HAVE GOT IS AN OLDER STATE STATUTE THAT IS NOT SENSITIVE TO THESE NEWER FEDERAL LAWS, WHEN THE PATIENT BROK ERING ACT STATUTE THAT IS PLIK ABLE TO ALL HEALTH CARE PROVIDER S IN FLORIDA.
GIVE THAT IS APPLICABLE TO ALL HEALTH CARE PROVIDERS IN FLORIDA.
GIVE ME THE HISTORY. WAS THE STATE STATUTE PASSED A S IT IS CURRENTLY , THAT IS A DDING THE ADDITIONAL WILLFUL BEFORE THE SAFE HARBOR PROVISION WERE ADDED?
THE STATUTE WE ARE DEALING WITH TODAY , THE STATE STATUTE WAS PASSED BEFORE THE RECENT CHANGE INSTHE SAFE HARBOR STATUTES CAME INTO PLAY. I THINK IF YOU GO TO THE C URRENT FLORIDA LAW, A VERY INTERESTING POINT AND ODDITY IN THIS W H OLE THING T HAT SORT OF EXPOSES THE WHOLETHING WE ARE TALKING ABOUT , IF YOU GO TO THE FLORIDA ANTI-KICKBACK STATUTE I N 456.054 THAT IS APP LICABLE TO ALL HEALTH CARE PROVIDERSIN THE STATE, NOT JUST MEDICAID OR MEDICA RE, THAT SAYS THAT REMUNERATION FOR SOLICITING A PA TIENT IS CONSIDERED PATIENT BROKERING UNDER FS 817.505. BUT WHEN YOU GO TO 817.505, THESE ARE RECENT STATUTES IN THE '9 0s AND 2000 , WHEN YOU GO TO THAT STATUTE, IT SAYS THE PAYMENT PRACTICE , ANY PAYMENT PRACTICE NOT PROHIBITED BY OUR STATUTE , THAT IS 1320-A -7 -BB, AND REGULATIONS THERE UNDER , ARE NOT PROHIB ITED. SO YOU HAVE STATE LAW. THIS IS THE M OST FRUSTRATING THING TO ME OF FELLNIZING OF HEALTH CARE PROVIDERS FORDOING WHAT IS PERMIS SIBLE NOT ONLY UNDER STATE LAW FORFOLLOWING A PAYMENT PRACTICE THAT IS NOT ONLY PERMISSIBLE UNDER FEDERAL LAW BUT IS PERMISSIBLE UNDER G ENERAL STATE LAW D EALING WITH ALL HEALTH CARE PROVIDERS ON THIS SAME MATTER. WHAT THEY WANT TO DO IS TAKEAN O LDER STATUTE THAT DOESN'T HAVE THIS SENSITIVITY TO THE FEDERAL LAWS, AND MAKE A FELONY OUT OF IT. AND THAT IS WRONG.
BUT THIS STATUTE THAT W E ARE DEALING WITH, SPECIFICALLY REFERS TO MEDICAID, AND WOULDN'T THAT SPECIFIC STATUTE BE CONTROLLING IN THE MEDICAID SITUATION?
IT WOULD BE EX CEPT IT IS IN CONF LICT WITH FEDERAL STATUTE.IN OTHER WORDS
THE FEDERAL STATUTE DID NOT APPLY , ASSUMING , AND WE STIL