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The Florida Senate

2011 Florida Statutes

Title XXIX PUBLIC HEALTH
Chapter 400 NURSING HOMES AND RELATED HEALTH CARE FACILITIES Entire Chapter
SECTION 474
Administrative penalties.
F.S. 400.474
400.474 Administrative penalties.—
(1) The agency may deny, revoke, and suspend a license and impose an administrative fine in the manner provided in chapter 120.
(2) Any of the following actions by a home health agency or its employee is grounds for disciplinary action by the agency:
(a) Violation of this part, part II of chapter 408, or of applicable rules.
(b) An intentional, reckless, or negligent act that materially affects the health or safety of a patient.
(c) Knowingly providing home health services in an unlicensed assisted living facility or unlicensed adult family-care home, unless the home health agency or employee reports the unlicensed facility or home to the agency within 72 hours after providing the services.
(d) Preparing or maintaining fraudulent patient records, such as, but not limited to, charting ahead, recording vital signs or symptoms that were not personally obtained or observed by the home health agency’s staff at the time indicated, borrowing patients or patient records from other home health agencies to pass a survey or inspection, or falsifying signatures.
(e) Failing to provide at least one service directly to a patient for a period of 60 days.
(3) The agency shall impose a fine of $1,000 against a home health agency that demonstrates a pattern of falsifying:
(a) Documents of training for home health aides or certified nursing assistants; or
(b) Health statements for staff providing direct care to patients.

A pattern may be demonstrated by a showing of at least three fraudulent entries or documents. The fine shall be imposed for each fraudulent document or, if multiple staff members are included on one document, for each fraudulent entry on the document.

(4) The agency shall impose a fine of $5,000 against a home health agency that demonstrates a pattern of billing any payor for services not provided. A pattern may be demonstrated by a showing of at least three billings for services not provided within a 12-month period. The fine must be imposed for each incident that is falsely billed. The agency may also:
(a) Require payback of all funds;
(b) Revoke the license; or
(c) Issue a moratorium in accordance with s. 408.814.
(5) The agency shall impose a fine of $5,000 against a home health agency that demonstrates a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the patient’s legal representative, or the plan of care for that patient, unless a reduction in service is mandated by Medicare, Medicaid, or a state program or as provided in s. 400.492(3). A pattern may be demonstrated by a showing of at least three incidences, regardless of the patient or service, where the home health agency did not provide a service specified in a written agreement or plan of care during a 3-month period. The agency shall impose the fine for each occurrence. The agency may also impose additional administrative fines under s. 400.484 for the direct or indirect harm to a patient, or deny, revoke, or suspend the license of the home health agency for a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the plan of care for that patient.
(6) The agency may deny, revoke, or suspend the license of a home health agency and shall impose a fine of $5,000 against a home health agency that:
(a) Gives remuneration for staffing services to:
1. Another home health agency with which it has formal or informal patient-referral transactions or arrangements; or
2. A health services pool with which it has formal or informal patient-referral transactions or arrangements,

unless the home health agency has activated its comprehensive emergency management plan in accordance with s. 400.492. This paragraph does not apply to a Medicare-certified home health agency that provides fair market value remuneration for staffing services to a non-Medicare-certified home health agency that is part of a continuing care facility licensed under chapter 651 for providing services to its own residents if each resident receiving home health services pursuant to this arrangement attests in writing that he or she made a decision without influence from staff of the facility to select, from a list of Medicare-certified home health agencies provided by the facility, that Medicare-certified home health agency to provide the services.

(b) Provides services to residents in an assisted living facility for which the home health agency does not receive fair market value remuneration.
(c) Provides staffing to an assisted living facility for which the home health agency does not receive fair market value remuneration.
(d) Fails to provide the agency, upon request, with copies of all contracts with assisted living facilities which were executed within 5 years before the request.
(e) Gives remuneration to a case manager, discharge planner, facility-based staff member, or third-party vendor who is involved in the discharge planning process of a facility licensed under chapter 395, chapter 429, or this chapter from whom the home health agency receives referrals.
(f) Fails to submit to the agency, within 15 days after the end of each calendar quarter, a written report that includes the following data based on data as it existed on the last day of the quarter:
1. The number of insulin-dependent diabetic patients receiving insulin-injection services from the home health agency;
2. The number of patients receiving both home health services from the home health agency and hospice services;
3. The number of patients receiving home health services from that home health agency; and
4. The names and license numbers of nurses whose primary job responsibility is to provide home health services to patients and who received remuneration from the home health agency in excess of $25,000 during the calendar quarter.
(g) Gives cash, or its equivalent, to a Medicare or Medicaid beneficiary.
(h) Has more than one medical director contract in effect at one time or more than one medical director contract and one contract with a physician-specialist whose services are mandated for the home health agency in order to qualify to participate in a federal or state health care program at one time.
(i) Gives remuneration to a physician without a medical director contract being in effect. The contract must:
1. Be in writing and signed by both parties;
2. Provide for remuneration that is at fair market value for an hourly rate, which must be supported by invoices submitted by the medical director describing the work performed, the dates on which that work was performed, and the duration of that work; and
3. Be for a term of at least 1 year.

The hourly rate specified in the contract may not be increased during the term of the contract. The home health agency may not execute a subsequent contract with that physician which has an increased hourly rate and covers any portion of the term that was in the original contract.

(j) Gives remuneration to:
1. A physician, and the home health agency is in violation of paragraph (h) or paragraph (i);
2. A member of the physician’s office staff; or
3. An immediate family member of the physician,

if the home health agency has received a patient referral in the preceding 12 months from that physician or physician’s office staff.

(k) Fails to provide to the agency, upon request, copies of all contracts with a medical director which were executed within 5 years before the request.
(l) Demonstrates a pattern of billing the Medicaid program for services to Medicaid recipients which are medically unnecessary as determined by a final order. A pattern may be demonstrated by a showing of at least two such medically unnecessary services within one Medicaid program integrity audit period.

Nothing in paragraph (e) or paragraph (j) shall be interpreted as applying to or precluding any discount, compensation, waiver of payment, or payment practice permitted by 42 U.S.C. s. 1320a-7(b) or regulations adopted thereunder, including 42 C.F.R. s. 1001.952 or s. 1395nn or regulations adopted thereunder.

(7)(a) In addition to the requirements of s. 408.813, any person, partnership, or corporation that violates s. 408.812 or s. 408.813 and that previously operated a licensed home health agency or concurrently operates both a licensed home health agency and an unlicensed home health agency commits a felony of the third degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If any home health agency is found to be operating without a license and that home health agency has received any government reimbursement for services, the agency shall make a fraud referral to the appropriate government reimbursement program.
History.—s. 42, ch. 75-233; s. 2, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 5, 23, ch. 93-214; s. 20, ch. 98-80; s. 4, ch. 99-332; s. 76, ch. 2007-230; s. 4, ch. 2008-246; s. 6, ch. 2009-223; s. 84, ch. 2010-5.