South Florida Hospital News
Wednesday April 14, 2021

test 2

July 2006 - Volume 3 - Issue 1


The Supreme Court of the State of Florida Declares Florida’s Medicaid Anti-kickback Statute Unconstitutional

The Supreme Court of Florida affirmed the Third District Court of Appeal decision in State v. Harden, 873 So. 2d 352 (Fla. 3d DCA 2004) declaring unconstitutional the Anti-kickback section of the Florida Medicaid Provider Fraud Statute, 409.920(e). In a carefully reasoned decision, the Supreme Court affirmed the dismissal of all charges against all defendants in the case of State of Florida vs. Gabriel R. Harden, (Case No. S00-38785) as well as 3 dentists -Edward Polsky, D.D.S., Maria Rodriguez, D.D.S., Elsa Cottoreal. D.D.S., and others.

The Supreme Court closely examined the material differences between the Federal Anti-kickback Statute and Florida’s Anti-kickback Statute and found that the Florida statute lacked two important elements contained in the Federal Statute:

1 - Safe Harbor Provisions at 42 C.F.R. § 1001.952 and Statutory Exceptions at 42 U.S.C. § 1320a –7b(b); and

2 - The "knowing and willful" mens rea burden of proof requirement.

Employee Exception/Safe Harbor

The Court reasoned that Florida’s anti-kickback statute, without any safe harbor provisions or statutory exceptions, criminalizes employee solicitation of Medicaid recipients that is protected under the federal anti-kickback statute.

Based on the differences between the federal and state statute at issue here, the Court concluded that Florida’s anti-kickback statute criminalizes conduct that federal law specifically intended to be lawful and shielded from prosecution. "There is clear congressional intent to exempt compensation paid by employers to bona-fide employees for providing covered items or services from those remunerations that constitute prohibited kickbacks under the federal statute."

Mens Rea

The heightened mens rea burden of proof of the federal statute (i.e., "knowing and willful") also indicates a clear intent that negligent or inadvertent behavior not subject an individual to prosecution under the federal statute.

"Both the heightened mens rea requirement and the safe harbor provisions are key elements in fulfilling the purpose of the federal anti-kickback statute, which is to outlaw health care referrals that are unethical. Accordingly, we agree with the Third District that the Florida anti-kickback statute is preempted because it presents an obstacle to the accomplishments of the purposes of the federal law."

Finally, the Supreme Court found that "Third District Court of Appeals properly found that there was implied conflict preemption and declared section 409.920, Florida Statutes (2000) unconstitutional."

Application to Other State Anti-kickback Statutes

According to the Florida Attorney General’s Office, 35 states have enacted similar anti-kickback statutes as the State of Florida. This Supreme Court decision has the potential to affect these other state anti-kickback statutes.


The case arose from the Florida Attorney General’s investigation of dental facilities throughout Broward, Miami-Dade and Palm Beach Counties named "Operation Tooth Decay" which resulted in over 112 arrests. Operation Tooth Decay was a crackdown on the practice of dental offices employing drivers to solicit and transport children for Medicaid reimbursable dental services.

According to the State, it was unlawful to use employees of a dental facility or dentist to solicit individuals to become patients of a dental facility or dentist. In December 2000, Gabriel Harden and nine other defendants were arrested for Racketeering, Conspiracy to Commit Racketeering and 7 Counts of Medicaid Fraud. In a 21 page carefully reasoned opinion issued by Circuit Court Judge David Miller dismissed the charges and found Florida Statute 409.920 unconstitutional.

The State of Florida appealed Judge Miller’s decision to the Third District Court of Appeal. Briefs were filed and Oral Arguments were heard.

The Health Law Offices of Anthony C. Vitale, P.A., concentrates in criminal, civil, administrative and licensure representation of health care professionals and institutions. Anthony C. Vitale is the President of the law firm bearing his name. The firm was established in 1982 and is recognized statewide as a leader in health care law and consultation. The firm is located in Miami, Florida, with offices in Tampa, Florida.

For additional information, contact Anthony C. Vitale at (305) 358-4500 or obtain a copy of the complete case decision, visit
Share |