Friday, October 31st, 2014

Fact-checking the Florida Democrats' latest attack on Rick Scott

Alex Sink and Florida Democrats are targeting Rick Scott in a two-minute ad themed like a TV news magazine segment.

Democrat Alex Sink is unveiling a new, hard-hitting ad that whacks Republican gubernatorial candidate Rick Scott for alleged fraud at his former health care company, Columbia/HCA, as well as his current health care business, Solantic.

We (and likely you) have heard many of the claims before. Among them -- that Scott took the Fifth Amendment 75 times in a deposition, that Columbia/HCA paid $1.7 billion in fines, that Solantic has been accused of fraud.

But this ad is different.

It's two minutes long and produced as a faux-news magazine segment called "Fraud Files." The only giveaway the ad is political is the disclaimer saying the spot is paid for by the Florida Democratic Party.

How much of it is true? PolitiFact Florida decided to analyze the ad's claims.

Troubles at Columbia/HCA

The ad begins more like an introduction to a Dateline NBC episode than a campaign commercial. Democratic party spokesman Eric Jotkoff said it will air during Oct. 13, 2010, news broadcasts in the Tampa Bay area.

The ad shows a much younger-looking Scott -- with curly hair around the sides and back of his head -- and pieces together the voice of a narrator with video news clips. "Is Columbia/HCA putting profits ahead of patients?" NBC's Brian Williams asks in undated video clip. Then, another male announcer asks, "Did Columbia treat a patient for a mild disease, then bill Medicare for something more expensive?" Then, a female reporter ... "Three executives of Columbia/HCA health care corp. have been indicted."

All of the reports and accompanying archived video stem from Scott's time running mega hospital chain Columbia/HCA.

Some background. Scott started what was first called Columbia in the spring of 1987 by purchasing two El Paso, Texas, hospitals. He quickly grew the company into one of the country's largest publicly traded hospital chains, and in 1994, merged Columbia with Tennessee-headquartered HCA and its 100 hospitals.

In early 1997, federal agents revealed they were investigating the Columbia/HCA chain for, among other things, Medicare and Medicaid fraud. Allegations included that Columbia/HCA billed Medicare and Medicaid for tests that were not necessary or ordered by physicians, and that the hospital chain would perform one type of medical test but bill the federal government for a more expensive test or procedure. Agents seized records from Columbia facilities across the country in Tennessee, North Carolina, Texas, Oklahoma, Utah and Florida.

Scott resigned in the middle of the federal investigation in July 1997. Scott said he wanted to fight the federal government accusations; the corporate board of Columbia/HCA wanted to settle, and did. In 2000, the company pleaded guilty to at least 14 corporate felonies and agreed to pay $840 million in criminal fines and civil damages and penalties. The company agreed to further settlements in 2002, paying an additional $881 million in fines.

So, when a reporter asks "Did Columbia treat a patient for a mild disease, then bill Medicare for something more expensive?", Columbia did admit to that, and other fraud, allegations in federal pleadings. We rate that claim True.

But when the female reporter says "Three executives of Columbia/HCA health care corp. have been indicted," that's more complicated. In the end, four Florida-based Columbia/HCA executives were indicted as part of the fraud investigation, but not Scott. Two executives were convicted of defrauding Medicare in 1999 and were sentenced to prison. But those convictions were overturned on appeal. Two other executives also were prosecuted. A federal jury acquitted one and failed to reach a verdict on the other. We rate that claim Half True.

More troubles at Columbia/HCA

The ad then pivots to allegations about Scott, specifically.

"A whistleblower revealed that Scott's company was cooking the books. Refusing to cooperate, Rick Scott gave a deposition in which he invoked the Fifth Amendment 75 times," a narrator says. "Which means a truthful answer to the questions that he was asked would incriminate him," says Michael McAuliffe, Palm Beach County's Democratic state attorney, finishing the thought.

Here, the campaign commercial veers off course.

Scott indeed did give a deposition in 2000 where he invoked the Fifth Amendment to the U.S. Constitution 75 times. The amendment reads in part that no one "shall be compelled in any criminal case to be a witness against himself." But Scott's deposition was not part of the criminal fraud case being pursued by the federal government (he was never officially questioned). Instead, the case in question was a civil case involving Columbia/HCA and Nevada Communications Corp. Nevada Communications alleged that Columbia/HCA breached the terms of a communications contract.

Scott's lawyer interjected after an opposing lawyer began the deposition by asking if Scott was employed. "Under normal circumstances, Mr. Scott would be pleased to answer that question and other questions that you pose today," Scott's lawyer, Steven Steinbach, said. "Unfortunately because of the pendency of a number of criminal investigations relating to Columbia around the country, he's going to follow my advice, out of prudence, to assert his constitutional privilege against giving testimony against himself.

"I would just like to note for the record," Steinback continued, "assertion of that privilege is not an indication of guilt."

Scott then went on to read the same answer to every question Nevada Communications lawyers asked, even when asked if Scott is a current or former employee of Columbia/HCA -- "Upon advice of counsel, I respectfully decline to answer the questions by asserting my rights and privileges under the Fifth Amendment of the U.S. Constitution."

The ad never clarifies, or tries to distinguish the deposition as being part of a civil case unconnected to the criminal investigation. It simply adds the claim into the middle of a series of claims about the criminal fraud case. On the other hand, Scott's reason for invoking the Fifth Amendment privilege was because of the criminal investigations surrounding Columbia/HCA, his lawyer said. We rate the claim Mostly True.

As for McAuliffe's suggestion that Scott's using the Fifth Amendment as a shield "means a truthful answer to the questions that he was asked would incriminate him," that's not as a clear cut in the context of the ad, either.

The U.S. Supreme Court ruled in 1956 that invoking the Fifth Amendment cannot be used to imply guilt in criminal cases. The case is an interesting one. Brooklyn College professor Harry Slochower was called to testify before a U.S. Senate committee led by Joseph McCarthy to determine if he was a member of the Communist Party. Slochower invoked his Fifth Amendment privilege not to answer questions about his party membership in 1940 and 1941. As a result, the college fired Slochower.

But the court said the college could not fire Slochower for invoking his constitutional rights. "The privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury," the court wrote in the Slochower case. That means McAuliffe could never tell a criminal jury what he's telling voters on TV.

"If this was a criminal prosecution I would not refer to his invocation of the Fifth Amendment, but that's not what we"re talking about," McAuliffe said. "This is not a criminal prosecution. It's the political process and he has put himself out there to be vetted by voters. They're the jury in this case."

In a civil case, things get a little murkier. Judges and juries can infer that a person who uses the Fifth Amendment would not incriminate himself if he answered honestly. They also, however, can infer the opposite.

What does that mean? Put simply, Scott's answers to those 75 questions may or may not have incriminated him.

"The bottom line is that in a civil case, the judge and jury are free to draw the inference that 'a truthful answer to the questions that he was asked would incriminate him,' " said George R. Dekle, Sr., a professor of law at the University of Florida. "However, there can be myriads of reasons other than guilt which prompt a person to claim a Fifth Amendment privilege, and it might be just as reasonable to infer that the witness refused to answer for some other reason."

We talked to two other legal scholars who seemed surprised that Scott used the Fifth Amendment so much in a deposition, especially when answering routine questions about his employment history. "You should not use the Fifth Amendment privilege if you don't think there's possible criminal liability," said Bruce Jacob, a law professor at Stetson.

That said, it's not an admission of guilt, said Oscar Michelen, a New York lawyer who has written articles on the Fifth Amendment. It can also be used as a way to protect the innocent from wrongful prosecution, he says. Investigators try to link people to crimes, he said. Not prove they did it. It reminds of us of a Law & Order episode -- the cops find a suspect and make a case. But halfway through the show, they realize they have the wrong person. "Experienced litigators and particularly experienced criminal defense lawyers will tell you that 9 out of 9.95 times if there is any remote possibility that you may be charged with a crime or become a target of a criminal investigation or proceeding, you should 'take the Fifth,' " Michelen said. We rate this claim Half True.

New fraud at Solantic

The final minute of the ad talks about Solantic, an urgent patient care business Scott co-founded in 2001.

"In 2008, new allegations emerged that Solantic was also engaging in multiple forms of fraud," the narrator says over visuals of flapping yellow police tape, a detective in a suit taking notes and men in police T-shirts carrying boxes out of a building.

The ad essentially is blending together two fraud allegations.

The first is a 2008 lawsuit filed by Dr. P. Mark Glencross. Glencross alleged that Solantic improperly used his medical license in 2004 when the company filed paperwork saying each clinic had a medical director in charge. Scott was deposed during the case -- that's the deposition he has declined to release. The two-year-old case was settled within a month of Scott's deposition and both parties signed a confidentiality agreement.

The second stems from allegations by another former Solantic physician, Dr. Randy Prokes. During the gubernatorial primary, Prokes sent an e-mail to Bill McCollum's Republican campaign for governor claiming that Solantic billed Medicare at full rates for patients seen by a nurse practitioner, when federal rules require that billing be at 85 percent of the fee paid for physician examinations.

The McCollum campaign passed the letter on to the Florida Department of Law Enforcement. The FDLE then sent the letter on to the inspector general"s office at the U.S. Department of Health and Human Services. That's where the letter sits today. The Department of Health and Human Services has not said whether it's investigating Prokes' claims.

The claims of fraud are real, but suggesting through images that police raided or seized records from Solantic is entirely misleading. Ads are about both the visuals and the words campaigns choose. In this case, the Democratic Party is inflating the allegations against Solantic by including video of sheriff's tape and police collecting evidence. There have been no reports that we could find of police raiding a Solantic facility, and the Democratic Party, when asked, could provide no evidence of any such search. As such, we rate this claim False.

Scott still has plenty of explaining to do about allegations of fraud both while running Columbia/HCA and at his new health care company, Solantic. Sink and Democrats try to play up the unanswered questions in a rare, two-minute ad set to air Wednesday in the Tampa Bay area. While many of the facts of the ad are correct, Sink and Democrats also use some clever editing and misleading visuals to sensationalize some of the accusations against Scott.