Senate Bill 1700
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Florida Senate - 1999 SB 1700
By Senator Grant
13-1165-99
1 A bill to be entitled
2 An act relating to the Medicaid program;
3 amending s. 409.910, F.S.; requiring providers
4 to use the standard tape or electronic billing
5 format adopted by the Agency for Health Care
6 Administration, or to accept paper billing
7 submitted by the agency; creating s. 409.9101,
8 F.S.; creating the "Medicaid Estate Recovery
9 Act"; providing legislative intent; allowing
10 the agency to recover amounts expended for
11 Medicaid assistance from the estate of a
12 deceased recipient; providing exceptions;
13 providing criteria to be used by the agency in
14 granting waivers on the grounds of undue
15 hardship; providing procedures and guidelines;
16 providing restrictions on the computation of
17 attorney's fees; amending s. 409.913, F.S.;
18 allowing the agency to withhold Medicaid
19 payments in whole or in part when there is
20 evidence of fraud, abuse, or crime; amending s.
21 733.212, F.S.; providing that Medicaid is a
22 reasonably ascertainable creditor of a decedent
23 in specified circumstances; providing an
24 effective date.
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Present subsection (21) of section 409.910,
29 Florida Statutes, 1998 Supplement, is redesignated as
30 subsection (22), and a new subsection (21) is added to that
31 section, to read:
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Florida Senate - 1999 SB 1700
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1 409.910 Responsibility for payments on behalf of
2 Medicaid-eligible persons when other parties are liable.--
3 (21) Any entity that provides health insurance as
4 defined in s. 624.603 or any health maintenance organization
5 as defined in chapter 641 which requires billing to be done by
6 tape or electronic format must, at its own expense, develop
7 the means to use the standard tape or electronic billing
8 format adopted by the agency. Any such entity that cannot use
9 the standard tape or electronic billing format adopted by the
10 agency must accept paper claims in any format adopted by the
11 agency, in lieu of tape or electronic billing.
12 Section 2. Section 409.9101, Florida Statutes, is
13 created to read:
14 409.9101 Recovery for payments made on behalf of
15 Medicaid recipients.--
16 (1) This section may be cited as the "Medicaid Estate
17 Recovery Act."
18 (2) It is the intent of the Legislature to supplement
19 Medicaid funds which are used to provide medical services to
20 eligible persons. Medicaid estate recovery will generally be
21 accomplished through the filing of claims on the estates of
22 deceased Medicaid recipients. Such recoveries will be made
23 pursuant to federal authority set forth in section 13612 of
24 the Omnibus Reconciliation Act of 1993, which amends section
25 1917(b)(1) of 42 U.S.C. 1396p(b)(1).
26 (3) Pursuant to s. 733.212(4)(a), the personal
27 representative for the estate of a deceased Medicaid recipient
28 shall serve Medicaid with a copy of the notice of
29 administration within 3 months after the first publication of
30 the notice unless Medicaid has already filed a claim under
31 this section.
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Florida Senate - 1999 SB 1700
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1 (4) The acceptance of public medical assistance as
2 defined by Title XIX (Medicaid) of the Social Security Act,
3 including mandatory and optional supplemental payments under
4 the Social Security Act, creates a claim and interest, as
5 defined in s. 731.201(4) and (21), in favor of the agency. The
6 allowable amount of the claim equals the total amount paid to
7 or for the benefit of the recipient for medical assistance on
8 behalf of the recipient after the recipient reaches age 55.
9 There is no claim under this section against the estate of any
10 Medicaid recipient who has not reached age 55.
11 (5) The agency may amend the amount of a claim on the
12 basis of medical claims submitted by providers subsequent to
13 the initial calculation of the amount of the claim.
14 (6) There is a rebuttable presumption, as set forth in
15 s. 90.302(2), that the amount of the agency's claim equals the
16 current total allowable amount of Medicaid payments as denoted
17 in the agency's provider payment processing system at the time
18 the agency's claim or amendment is filed.
19 (7) The agency's claim under this section constitutes
20 a class 3 claim under s. 733.707(1)(c) as provided in s.
21 414.28(1).
22 (8) The claim created under this section is
23 unenforceable if the recipient is survived by:
24 (a) A spouse;
25 (b) A child who is under the age of 21 years; or
26 (c) A child who is living in the recipient's home and
27 who is blind or permanently and totally disabled pursuant to
28 the eligibility requirements of Title XIX of the Social
29 Security Act.
30 (9) In accordance with s. 4, Art. X of the State
31 Constitution, a claim under this section is unenforceable
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1 against any property that is determined to be the homestead of
2 the deceased Medicaid recipient.
3 (10) The state may not recover from an estate if doing
4 so would cause undue hardship for the qualified heirs as
5 defined in s. 731.201(18). An heir or the personal
6 representative of an estate may request that the agency waive
7 recovery of any or all of the debt if recovery would create an
8 undue hardship. An undue hardship does not exist solely
9 because recovery will prevent any heirs from receiving an
10 anticipated inheritance. In reviewing a request for a waiver
11 based on a claim of undue hardship, the agency must consider
12 whether:
13 (a) An heir currently resides in the decedent's
14 residence and:
15 1. Resided there at the time of the decedent's death;
16 2. Has made the residence his or her primary residence
17 for the 12 months immediately preceding the decedent's death;
18 and
19 3. Owns no other residence.
20 (b) Without such a waiver, the heir or heirs would be
21 deprived of food, clothing, shelter, or medical care necessary
22 for the maintenance of life or health.
23 (c) An heir who is the deceased recipient's son,
24 daughter, or sibling resided in the recipient's home for at
25 least 1 year preceding the recipient's death and can document
26 that he or she provided the recipient with full-time care that
27 delayed the recipient's entry into a nursing home.
28 (d) The cost involved in the sale of the property
29 would be equal to or greater than the value of the property.
30 (11) In some Medicaid estate cases, the deceased
31 recipient's assets include a settlement of a claim against a
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1 liable third party. The agency's claim under s. 409.910 must
2 be satisfied before the settlement proceeds are included as
3 estate assets. The remaining settlement proceeds must be
4 included in the estate and available to satisfy the agency's
5 estate recovery claim. Medicaid's share of these assets must
6 be calculated as follows:
7 (a) The total settlement less the amount paid to
8 Medicaid under s. 409.910 equals the net settlement.
9 (b) After deducting from the net settlement the
10 attorney's fees and taxable costs, as defined in the Florida
11 Rules of Civil Procedure, which relate to the third-party
12 action and not to the administration of the estate, half of
13 the remaining recovery must be paid to the agency up to the
14 amount of the outstanding Medicaid estate recovery lien.
15 (c) For the purposes of calculating the agency's
16 recovery of medical assistance benefits paid, the attorney's
17 fees for an attorney retained by the recipient or the
18 recipient's representative must be calculated at 25 percent of
19 the judgment, award, or settlement.
20 (12) If there are no liquid assets to satisfy a
21 Medicaid claim and there is nonhomestead real property that
22 can be sold for a sum that exceeds the costs of the sale, the
23 property must be sold to satisfy the Medicaid claim. The title
24 to real property may not be transferred to the agency.
25 (13) The agency shall adopt rules to administer this
26 section and enforce federal requirements.
27 Section 3. Paragraph (a) of subsection (24) of section
28 409.913, Florida Statutes, is amended to read:
29 409.913 Oversight of the integrity of the Medicaid
30 program.--The agency shall operate a program to oversee the
31 activities of Florida Medicaid recipients, and providers and
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1 their representatives, to ensure that fraudulent and abusive
2 behavior and neglect of recipients occur to the minimum extent
3 possible, and to recover overpayments and impose sanctions as
4 appropriate.
5 (24)(a) The agency may withhold Medicaid payments, in
6 whole or in part, to a provider, upon receipt of reliable
7 evidence that the circumstances giving rise to the need for
8 withholding payments involve fraud or abuse under the Medicaid
9 program or a crime committed while rendering goods or services
10 to Medicaid recipients up to the amount of the overpayment as
11 determined by final agency audit report, pending completion of
12 legal proceedings under this section. If the agency withholds
13 payments under this section, the Medicaid payment may not be
14 reduced by more than 10 percent. If it is has been determined
15 that fraud, abuse, or crime did not occur an overpayment has
16 not occurred, the payments withheld must be paid to the
17 provider within 60 days with interest at the rate of 10
18 percent a year. If the amount of the alleged overpayment
19 exceeds $75,000, the agency may reduce the Medicaid payments
20 by up to $25,000 per month.
21 Section 4. Paragraph (a) of subsection (4) of section
22 733.212, Florida Statutes, is amended to read:
23 733.212 Notice of administration; filing of objections
24 and claims.--
25 (4)(a) The personal representative shall promptly make
26 a diligent search to determine the names and addresses of
27 creditors of the decedent who are reasonably ascertainable and
28 shall serve on those creditors a copy of the notice within 3
29 months after the first publication of the notice. Medicaid is
30 considered a reasonably ascertainable creditor of a decedent
31 who had received Medicaid assistance for medical care after
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1 the age of 55. Impracticable and extended searches are not
2 required. Service is not required on any creditor who has
3 filed a claim as provided in this part; a creditor whose claim
4 has been paid in full; or a creditor whose claim is listed in
5 a personal representative's timely proof of claim if the
6 personal representative notified the creditor of that listing.
7 Section 5. This act shall take effect July 1, 1999.
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10 SENATE SUMMARY
11 Relates to Medicaid. Requires providers to use the
standard tape or electronic billing format adopted by the
12 Agency for Health Care Administration, or to accept paper
billing as submitted by the agency. Creates the "Medicaid
13 Estate Recovery Act." Provides legislative intent. Allows
the agency to recover amounts expended for Medicaid
14 assistance from the estate of a deceased recipient, with
exceptions. Provides criteria to be used by the agency in
15 granting waivers on the grounds of undue hardship.
Provides procedures and guidelines. Provides restrictions
16 on the computation of attorney's fees. Allows the agency
to withhold Medicaid payments in whole or in part when
17 there is evidence of fraud, abuse, or crime. Provides
that Medicaid is a reasonably ascertainable creditor of a
18 decedent in specified circumstances.
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