Cited Article

Defining "Willful" Remuneration: How Bryan v. United States Affects the Scienter Requirement of the Medicare/Medicaid Anti-kickback Statute, Note


Robb De Graw

Case Citation

State v. Harden, 938 So. 2d 480 (Fla. 2006)


Holding that an “[i]ndictment alleging defendants violated Fla. Stat. § 409.920(2)(e) (2000), the "anti-kickback" provision of the Florida Medicaid fraud statute, was properly dismissed because § 409.920(2)(e) was impliedly preempted by federal legislation and therefore was unconstitutional under the Supremacy Clause.”

Citing Quote

In contrast, the federal statute applies only to those acts that are performed "knowingly and willfully," which 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." United States v. Starks, 157 F.3d 833, 838 (11th Cir. 1998) (quoting Bryan v. United States, 524 U.S. 184, 193, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998) , in which a federal firearms trafficking law prohibited anyone from "willfully" violating the statutory provision that forbids dealing in firearms without a federal license). n8 n8 Prior to the Supreme Court's decision in Bryan, only the Ninth Circuit Court of Appeals had applied a heightened mens rea standard to the federal anti-kickback statute. See Hanlester Network v. Shalala, 51 F.3d 1390, 1400 (9th Cir. 1995) (construing "knowingly and willfully" as requiring defendants to know that the statute prohibits offering or paying remuneration to induce referrals and to engage in the prohibited conduct with the specific intent to disobey the law). Other circuits have interpreted "willfully" under a middle mens rea standard, which is consistent with the Supreme Court's subsequent decision in Bryan. See United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998) (approving jury instruction which informed jury that knowingly "means that the act was done voluntarily and intentionally, not because of mistake or accident"); United States v. Jain, 93 F.3d 436, 441 (8th Cir. 1996) (concluding that heightened mens rea standard of Medicare anti-kickback statute only required proof that defendant knew that his conduct was wrongful and not that he knew it violated "a known legal duty"); United States v. Neufeld, 908 F. Supp. 491, 496-97 (S.D. Ohio 1995) (declining to follow the Hanlester interpretation of "willfulness" as requiring knowledge of illegality). Commentators have predicted that the standard announced in Bryan will be followed by federal courts in anti-kickback prosecutions. See Robb De Graw, Note, Defining "Willful" Remuneration: How Bryan v. United States Affects the Scienter Requirement of the Medicare/Medicaid Anti-kickback Statute, 14 J.L. & Health 271 (1999-2000) . However, even after the decision in Bryan, the Tenth Circuit still applied the higher mens rea standard to an anti-kickback prosecution. See United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000) (requiring proof of specific intent to violate the law). Thus, there is still some question as to the scienter requirement for a violation of the federal anti-kickback statute. In no cases, however, have the federal courts applied a negligence or inadvertence standard similar to that in Florida's statute.

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