Senate Bill sb1064c1
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Florida Senate - 2004 CS for SB 1064
By the Committee on Health, Aging, and Long-Term Care; and
Senators Saunders, Aronberg and Fasano
317-1972-04
1 A bill to be entitled
2 An act relating to Medicaid; amending s. 16.56,
3 F.S.; adding criminal violations of s. 409.920
4 or s. 409.9201, F.S., to the list of specified
5 crimes within the jurisdiction of the Office of
6 Statewide Prosecution; amending s. 400.408,
7 F.S.; including the Medicaid Fraud Control Unit
8 of the Department of Legal Affairs in the
9 Agency for Health Care Administration's local
10 coordinating workgroups for identifying
11 unlicensed assisted living facilities; amending
12 s. 400.434, F.S.; giving the Medicaid Fraud
13 Control Unit of the Department of Legal Affairs
14 the authority to enter and inspect facilities
15 licensed under part III of ch. 400, F.S.;
16 amending s. 409.912, F.S.; giving the Agency
17 for Health Care Administration the authority to
18 require a confirmation or second physician's
19 opinion of the correct diagnosis before
20 authorizing payment for medical treatment;
21 authorizing the Agency for Health Care
22 Administration to impose mandatory enrollment
23 in drug-therapy-management or
24 disease-management programs for certain
25 categories of recipients; requiring that the
26 Agency for Health Care Administration and the
27 Drug Utilization Review Board consult with the
28 Department of Health; allowing termination of
29 certain practitioners from the Medicaid
30 program; providing that Medicaid recipients may
31 be mandated to participate in a provider
1
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1 lock-in program; amending s. 409.913, F.S.;
2 providing specified conditions for providers to
3 meet in order to submit claims to the Medicaid
4 program; providing that claims may be denied if
5 not properly submitted; providing that the
6 agency may seek any remedy under law if a
7 provider submits specified false or erroneous
8 claims; providing that suspension or
9 termination precludes participation in the
10 Medicaid program; providing that the agency is
11 required to report administrative sanctions to
12 licensing authorities for certain violations;
13 providing that the agency may withhold payment
14 to a provider under certain circumstances;
15 providing that the agency may deny payments to
16 terminated or suspended providers; authorizing
17 the agency to implement amnesty programs for
18 providers to voluntarily repay overpayments;
19 authorizing the agency to adopt rules;
20 providing for limiting, restricting, or
21 suspending Medicaid eligibility of Medicaid
22 recipients convicted of certain crimes or
23 offenses; authorizing the agency and the
24 Medicaid Fraud Control Unit of the Department
25 of Legal Affairs to review non-Medicaid-related
26 records in order to determine reconciliation of
27 a provider's records; authorizing the agency
28 head or designee to limit, restrict, or suspend
29 Medicaid eligibility for a period not to exceed
30 1 year if a recipient is convicted of a federal
31 health care crime; authorizing the Agency for
2
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1 Health Care Administration to limit the number
2 of certain types of prescription claims
3 submitted by pharmacy providers; requiring the
4 agency to limit the allowable amount of certain
5 types of prescriptions under specified
6 circumstances; amending s. 409.9131, F.S.;
7 redefining the term "peer review"; providing
8 for peer review for purposes of determining a
9 potential overpayment if the medical necessity
10 or quality of care is evaluated; requiring an
11 additional statement on Medicaid cost reports
12 certifying that Medicaid providers are familiar
13 with the laws and regulations regarding the
14 provision of health care services under the
15 Medicaid program; amending s. 409.920, F.S.;
16 redefining the term "knowingly" to include
17 "willfully" or "willful"; making it unlawful to
18 knowingly use or endeavor to use a Medicaid
19 provider's or a Medicaid recipient's
20 identification number or cause to be made, or
21 aid and abet in the making of, a claim for
22 items or services that are not authorized to be
23 reimbursed under the Medicaid program; defining
24 the term "paid for"; expanding the authority of
25 the Attorney General to examine patient
26 records; creating s. 409.9201, F.S.; providing
27 definitions; providing that a person who
28 knowingly sells or attempts to sell legend
29 drugs obtained through the Medicaid program
30 commits a felony; providing that a person who
31 knowingly purchases or attempts to purchase
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1 legend drugs obtained through the Medicaid
2 program and intended for the use of another
3 commits a felony; providing that a person who
4 knowingly makes or conspires to make false
5 representations for the purpose of obtaining
6 goods or services from the Medicaid program
7 commits a felony; providing specified criminal
8 penalties depending on the value of the legend
9 drugs or goods or services obtained from the
10 Medicaid program; amending s. 456.072, F.S.;
11 providing an additional ground under which a
12 health care practitioner who prescribes
13 medicinal drugs or controlled substances may be
14 subject to discipline by the Department of
15 Health or the appropriate board having
16 jurisdiction over the health care practitioner;
17 authorizing the Department of Health to
18 initiate a disciplinary investigation of
19 prescribing practitioners under specified
20 circumstances; amending s. 465.188, F.S.;
21 deleting the requirement that the Agency for
22 Health Care Administration give pharmacists at
23 least 1 week's notice prior to an audit;
24 specifying an effective date for certain audit
25 criteria; creating s. 812.0191, F.S.; providing
26 definitions; providing that a person who
27 traffics in property paid for in whole or in
28 part by the Medicaid program, or who knowingly
29 finances, directs, or traffics in such
30 property, commits a felony; providing specified
31 criminal penalties depending on the value of
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1 the property; amending s. 895.02, F.S.; adding
2 Medicaid recipient fraud to the definition of
3 the term "racketeering activity"; amending s.
4 905.34, F.S.; adding any criminal violation of
5 s. 409.920 or s. 409.9201, F.S., to the list of
6 crimes within the jurisdiction of the statewide
7 grand jury; amending s. 932.701, F.S.;
8 expanding the definition of "contraband
9 article"; amending s. 932.7055, F.S.; requiring
10 that proceeds collected under the Florida
11 Contraband Forfeiture Act be deposited in the
12 Agency for Health Care Administration's Grants
13 and Donations Trust Fund; providing an
14 effective date.
15
16 Be It Enacted by the Legislature of the State of Florida:
17
18 Section 1. Subsection (1) of section 16.56, Florida
19 Statutes, is amended to read:
20 16.56 Office of Statewide Prosecution.--
21 (1) There is created in the Department of Legal
22 Affairs an Office of Statewide Prosecution. The office shall
23 be a separate "budget entity" as that term is defined in
24 chapter 216. The office may:
25 (a) Investigate and prosecute the offenses of:
26 1. Bribery, burglary, criminal usury, extortion,
27 gambling, kidnapping, larceny, murder, prostitution, perjury,
28 robbery, carjacking, and home-invasion robbery;
29 2. Any crime involving narcotic or other dangerous
30 drugs;
31
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1 3. Any violation of the provisions of the Florida RICO
2 (Racketeer Influenced and Corrupt Organization) Act, including
3 any offense listed in the definition of racketeering activity
4 in s. 895.02(1)(a), providing such listed offense is
5 investigated in connection with a violation of s. 895.03 and
6 is charged in a separate count of an information or indictment
7 containing a count charging a violation of s. 895.03, the
8 prosecution of which listed offense may continue independently
9 if the prosecution of the violation of s. 895.03 is terminated
10 for any reason;
11 4. Any violation of the provisions of the Florida
12 Anti-Fencing Act;
13 5. Any violation of the provisions of the Florida
14 Antitrust Act of 1980, as amended;
15 6. Any crime involving, or resulting in, fraud or
16 deceit upon any person;
17 7. Any violation of s. 847.0135, relating to computer
18 pornography and child exploitation prevention, or any offense
19 related to a violation of s. 847.0135;
20 8. Any violation of the provisions of chapter 815; or
21 9. Any criminal violation of part I of chapter 499; or
22 10. Any criminal violation of s. 409.920 or s.
23 409.9201.
24
25 or any attempt, solicitation, or conspiracy to commit any of
26 the crimes specifically enumerated above. The office shall
27 have such power only when any such offense is occurring, or
28 has occurred, in two or more judicial circuits as part of a
29 related transaction, or when any such offense is connected
30 with an organized criminal conspiracy affecting two or more
31 judicial circuits.
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1 (b) Upon request, cooperate with and assist state
2 attorneys and state and local law enforcement officials in
3 their efforts against organized crimes.
4 (c) Request and receive from any department, division,
5 board, bureau, commission, or other agency of the state, or of
6 any political subdivision thereof, cooperation and assistance
7 in the performance of its duties.
8 Section 2. Paragraph (i) of subsection (1) of section
9 400.408, Florida Statutes, is amended to read:
10 400.408 Unlicensed facilities; referral of person for
11 residency to unlicensed facility; penalties; verification of
12 licensure status.--
13 (1)
14 (i) Each field office of the Agency for Health Care
15 Administration shall establish a local coordinating workgroup
16 which includes representatives of local law enforcement
17 agencies, state attorneys, the Medicaid Fraud Control Unit of
18 the Department of Legal Affairs, local fire authorities, the
19 Department of Children and Family Services, the district
20 long-term care ombudsman council, and the district human
21 rights advocacy committee to assist in identifying the
22 operation of unlicensed facilities and to develop and
23 implement a plan to ensure effective enforcement of state laws
24 relating to such facilities. The workgroup shall report its
25 findings, actions, and recommendations semiannually to the
26 Director of Health Facility Regulation of the agency.
27 Section 3. Section 400.434, Florida Statutes, is
28 amended to read:
29 400.434 Right of entry and inspection.--Any duly
30 designated officer or employee of the department, the
31 Department of Children and Family Services, the agency, the
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1 Medicaid Fraud Control Unit of the Department of Legal
2 Affairs, the state or local fire marshal, or a member of the
3 state or local long-term care ombudsman council shall have the
4 right to enter unannounced upon and into the premises of any
5 facility licensed pursuant to this part in order to determine
6 the state of compliance with the provisions of this part and
7 of rules or standards in force pursuant thereto. The right of
8 entry and inspection shall also extend to any premises which
9 the agency has reason to believe is being operated or
10 maintained as a facility without a license; but no such entry
11 or inspection of any premises may be made without the
12 permission of the owner or person in charge thereof, unless a
13 warrant is first obtained from the circuit court authorizing
14 such entry. The warrant requirement shall extend only to a
15 facility which the agency has reason to believe is being
16 operated or maintained as a facility without a license. Any
17 application for a license or renewal thereof made pursuant to
18 this part shall constitute permission for, and complete
19 acquiescence in, any entry or inspection of the premises for
20 which the license is sought, in order to facilitate
21 verification of the information submitted on or in connection
22 with the application; to discover, investigate, and determine
23 the existence of abuse or neglect; or to elicit, receive,
24 respond to, and resolve complaints. Any current valid license
25 shall constitute unconditional permission for, and complete
26 acquiescence in, any entry or inspection of the premises by
27 authorized personnel. The agency shall retain the right of
28 entry and inspection of facilities that have had a license
29 revoked or suspended within the previous 24 months, to ensure
30 that the facility is not operating unlawfully. However, before
31 entering the facility, a statement of probable cause must be
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1 filed with the director of the agency, who must approve or
2 disapprove the action within 48 hours. Probable cause shall
3 include, but is not limited to, evidence that the facility
4 holds itself out to the public as a provider of personal care
5 services or the receipt of a complaint by the long-term care
6 ombudsman council about the facility. Data collected by the
7 state or local long-term care ombudsman councils or the state
8 or local advocacy councils may be used by the agency in
9 investigations involving violations of regulatory standards.
10 Section 4. Section 409.912, Florida Statutes, is
11 amended to read:
12 409.912 Cost-effective purchasing of health care.--The
13 agency shall purchase goods and services for Medicaid
14 recipients in the most cost-effective manner consistent with
15 the delivery of quality medical care. To ensure that medical
16 services are effectively utilized, the agency may, in any
17 case, require a confirmation or second physician's opinion of
18 the correct diagnosis before authorizing payment for medical
19 treatment. Such confirmation or second opinion shall be
20 rendered in a manner approved by the agency. The agency shall
21 maximize the use of prepaid per capita and prepaid aggregate
22 fixed-sum basis services when appropriate and other
23 alternative service delivery and reimbursement methodologies,
24 including competitive bidding pursuant to s. 287.057, designed
25 to facilitate the cost-effective purchase of a case-managed
26 continuum of care. The agency shall also require providers to
27 minimize the exposure of recipients to the need for acute
28 inpatient, custodial, and other institutional care and the
29 inappropriate or unnecessary use of high-cost services. The
30 agency may mandate establish prior authorization, drug therapy
31 management, or disease management participation requirements
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1 for certain populations of Medicaid beneficiaries, certain
2 drug classes, or particular drugs to prevent fraud, abuse,
3 overuse, and possible dangerous drug interactions. The
4 Pharmaceutical and Therapeutics Committee shall make
5 recommendations to the agency on drugs for which prior
6 authorization is required. The agency shall inform the
7 Pharmaceutical and Therapeutics Committee of its decisions
8 regarding drugs subject to prior authorization.
9 (1) The agency shall work with the Department of
10 Children and Family Services to ensure access of children and
11 families in the child protection system to needed and
12 appropriate mental health and substance abuse services.
13 (2) The agency may enter into agreements with
14 appropriate agents of other state agencies or of any agency of
15 the Federal Government and accept such duties in respect to
16 social welfare or public aid as may be necessary to implement
17 the provisions of Title XIX of the Social Security Act and ss.
18 409.901-409.920.
19 (3) The agency may contract with health maintenance
20 organizations certified pursuant to part I of chapter 641 for
21 the provision of services to recipients.
22 (4) The agency may contract with:
23 (a) An entity that provides no prepaid health care
24 services other than Medicaid services under contract with the
25 agency and which is owned and operated by a county, county
26 health department, or county-owned and operated hospital to
27 provide health care services on a prepaid or fixed-sum basis
28 to recipients, which entity may provide such prepaid services
29 either directly or through arrangements with other providers.
30 Such prepaid health care services entities must be licensed
31 under parts I and III by January 1, 1998, and until then are
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1 exempt from the provisions of part I of chapter 641. An entity
2 recognized under this paragraph which demonstrates to the
3 satisfaction of the Office of Insurance Regulation of the
4 Financial Services Commission that it is backed by the full
5 faith and credit of the county in which it is located may be
6 exempted from s. 641.225.
7 (b) An entity that is providing comprehensive
8 behavioral health care services to certain Medicaid recipients
9 through a capitated, prepaid arrangement pursuant to the
10 federal waiver provided for by s. 409.905(5). Such an entity
11 must be licensed under chapter 624, chapter 636, or chapter
12 641 and must possess the clinical systems and operational
13 competence to manage risk and provide comprehensive behavioral
14 health care to Medicaid recipients. As used in this paragraph,
15 the term "comprehensive behavioral health care services" means
16 covered mental health and substance abuse treatment services
17 that are available to Medicaid recipients. The secretary of
18 the Department of Children and Family Services shall approve
19 provisions of procurements related to children in the
20 department's care or custody prior to enrolling such children
21 in a prepaid behavioral health plan. Any contract awarded
22 under this paragraph must be competitively procured. In
23 developing the behavioral health care prepaid plan procurement
24 document, the agency shall ensure that the procurement
25 document requires the contractor to develop and implement a
26 plan to ensure compliance with s. 394.4574 related to services
27 provided to residents of licensed assisted living facilities
28 that hold a limited mental health license. The agency shall
29 seek federal approval to contract with a single entity meeting
30 these requirements to provide comprehensive behavioral health
31 care services to all Medicaid recipients in an AHCA area. Each
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1 entity must offer sufficient choice of providers in its
2 network to ensure recipient access to care and the opportunity
3 to select a provider with whom they are satisfied. The network
4 shall include all public mental health hospitals. To ensure
5 unimpaired access to behavioral health care services by
6 Medicaid recipients, all contracts issued pursuant to this
7 paragraph shall require 80 percent of the capitation paid to
8 the managed care plan, including health maintenance
9 organizations, to be expended for the provision of behavioral
10 health care services. In the event the managed care plan
11 expends less than 80 percent of the capitation paid pursuant
12 to this paragraph for the provision of behavioral health care
13 services, the difference shall be returned to the agency. The
14 agency shall provide the managed care plan with a
15 certification letter indicating the amount of capitation paid
16 during each calendar year for the provision of behavioral
17 health care services pursuant to this section. The agency may
18 reimburse for substance abuse treatment services on a
19 fee-for-service basis until the agency finds that adequate
20 funds are available for capitated, prepaid arrangements.
21 1. By January 1, 2001, the agency shall modify the
22 contracts with the entities providing comprehensive inpatient
23 and outpatient mental health care services to Medicaid
24 recipients in Hillsborough, Highlands, Hardee, Manatee, and
25 Polk Counties, to include substance abuse treatment services.
26 2. By July 1, 2003, the agency and the Department of
27 Children and Family Services shall execute a written agreement
28 that requires collaboration and joint development of all
29 policy, budgets, procurement documents, contracts, and
30 monitoring plans that have an impact on the state and Medicaid
31 community mental health and targeted case management programs.
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1 3. By July 1, 2006, the agency and the Department of
2 Children and Family Services shall contract with managed care
3 entities in each AHCA area except area 6 or arrange to provide
4 comprehensive inpatient and outpatient mental health and
5 substance abuse services through capitated prepaid
6 arrangements to all Medicaid recipients who are eligible to
7 participate in such plans under federal law and regulation. In
8 AHCA areas where eligible individuals number less than
9 150,000, the agency shall contract with a single managed care
10 plan. The agency may contract with more than one plan in AHCA
11 areas where the eligible population exceeds 150,000. Contracts
12 awarded pursuant to this section shall be competitively
13 procured. Both for-profit and not-for-profit corporations
14 shall be eligible to compete.
15 4. By October 1, 2003, the agency and the department
16 shall submit a plan to the Governor, the President of the
17 Senate, and the Speaker of the House of Representatives which
18 provides for the full implementation of capitated prepaid
19 behavioral health care in all areas of the state. The plan
20 shall include provisions which ensure that children and
21 families receiving foster care and other related services are
22 appropriately served and that these services assist the
23 community-based care lead agencies in meeting the goals and
24 outcomes of the child welfare system. The plan will be
25 developed with the participation of community-based lead
26 agencies, community alliances, sheriffs, and community
27 providers serving dependent children.
28 a. Implementation shall begin in 2003 in those AHCA
29 areas of the state where the agency is able to establish
30 sufficient capitation rates.
31
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1 b. If the agency determines that the proposed
2 capitation rate in any area is insufficient to provide
3 appropriate services, the agency may adjust the capitation
4 rate to ensure that care will be available. The agency and the
5 department may use existing general revenue to address any
6 additional required match but may not over-obligate existing
7 funds on an annualized basis.
8 c. Subject to any limitations provided for in the
9 General Appropriations Act, the agency, in compliance with
10 appropriate federal authorization, shall develop policies and
11 procedures that allow for certification of local and state
12 funds.
13 5. Children residing in a statewide inpatient
14 psychiatric program, or in a Department of Juvenile Justice or
15 a Department of Children and Family Services residential
16 program approved as a Medicaid behavioral health overlay
17 services provider shall not be included in a behavioral health
18 care prepaid health plan pursuant to this paragraph.
19 6. In converting to a prepaid system of delivery, the
20 agency shall in its procurement document require an entity
21 providing comprehensive behavioral health care services to
22 prevent the displacement of indigent care patients by
23 enrollees in the Medicaid prepaid health plan providing
24 behavioral health care services from facilities receiving
25 state funding to provide indigent behavioral health care, to
26 facilities licensed under chapter 395 which do not receive
27 state funding for indigent behavioral health care, or
28 reimburse the unsubsidized facility for the cost of behavioral
29 health care provided to the displaced indigent care patient.
30 7. Traditional community mental health providers under
31 contract with the Department of Children and Family Services
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1 pursuant to part IV of chapter 394, child welfare providers
2 under contract with the Department of Children and Family
3 Services, and inpatient mental health providers licensed
4 pursuant to chapter 395 must be offered an opportunity to
5 accept or decline a contract to participate in any provider
6 network for prepaid behavioral health services.
7 (c) A federally qualified health center or an entity
8 owned by one or more federally qualified health centers or an
9 entity owned by other migrant and community health centers
10 receiving non-Medicaid financial support from the Federal
11 Government to provide health care services on a prepaid or
12 fixed-sum basis to recipients. Such prepaid health care
13 services entity must be licensed under parts I and III of
14 chapter 641, but shall be prohibited from serving Medicaid
15 recipients on a prepaid basis, until such licensure has been
16 obtained. However, such an entity is exempt from s. 641.225
17 if the entity meets the requirements specified in subsections
18 (15) and (16).
19 (d) A provider service network may be reimbursed on a
20 fee-for-service or prepaid basis. A provider service network
21 which is reimbursed by the agency on a prepaid basis shall be
22 exempt from parts I and III of chapter 641, but must meet
23 appropriate financial reserve, quality assurance, and patient
24 rights requirements as established by the agency. The agency
25 shall award contracts on a competitive bid basis and shall
26 select bidders based upon price and quality of care. Medicaid
27 recipients assigned to a demonstration project shall be chosen
28 equally from those who would otherwise have been assigned to
29 prepaid plans and MediPass. The agency is authorized to seek
30 federal Medicaid waivers as necessary to implement the
31 provisions of this section.
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1 (e) An entity that provides comprehensive behavioral
2 health care services to certain Medicaid recipients through an
3 administrative services organization agreement. Such an entity
4 must possess the clinical systems and operational competence
5 to provide comprehensive health care to Medicaid recipients.
6 As used in this paragraph, the term "comprehensive behavioral
7 health care services" means covered mental health and
8 substance abuse treatment services that are available to
9 Medicaid recipients. Any contract awarded under this paragraph
10 must be competitively procured. The agency must ensure that
11 Medicaid recipients have available the choice of at least two
12 managed care plans for their behavioral health care services.
13 (f) An entity that provides in-home physician services
14 to test the cost-effectiveness of enhanced home-based medical
15 care to Medicaid recipients with degenerative neurological
16 diseases and other diseases or disabling conditions associated
17 with high costs to Medicaid. The program shall be designed to
18 serve very disabled persons and to reduce Medicaid reimbursed
19 costs for inpatient, outpatient, and emergency department
20 services. The agency shall contract with vendors on a
21 risk-sharing basis.
22 (g) Children's provider networks that provide care
23 coordination and care management for Medicaid-eligible
24 pediatric patients, primary care, authorization of specialty
25 care, and other urgent and emergency care through organized
26 providers designed to service Medicaid eligibles under age 18
27 and pediatric emergency departments' diversion programs. The
28 networks shall provide after-hour operations, including
29 evening and weekend hours, to promote, when appropriate, the
30 use of the children's networks rather than hospital emergency
31 departments.
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1 (h) An entity authorized in s. 430.205 to contract
2 with the agency and the Department of Elderly Affairs to
3 provide health care and social services on a prepaid or
4 fixed-sum basis to elderly recipients. Such prepaid health
5 care services entities are exempt from the provisions of part
6 I of chapter 641 for the first 3 years of operation. An entity
7 recognized under this paragraph that demonstrates to the
8 satisfaction of the Office of Insurance Regulation that it is
9 backed by the full faith and credit of one or more counties in
10 which it operates may be exempted from s. 641.225.
11 (i) A Children's Medical Services network, as defined
12 in s. 391.021.
13 (5) By October 1, 2003, the agency and the department
14 shall, to the extent feasible, develop a plan for implementing
15 new Medicaid procedure codes for emergency and crisis care,
16 supportive residential services, and other services designed
17 to maximize the use of Medicaid funds for Medicaid-eligible
18 recipients. The agency shall include in the agreement
19 developed pursuant to subsection (4) a provision that ensures
20 that the match requirements for these new procedure codes are
21 met by certifying eligible general revenue or local funds that
22 are currently expended on these services by the department
23 with contracted alcohol, drug abuse, and mental health
24 providers. The plan must describe specific procedure codes to
25 be implemented, a projection of the number of procedures to be
26 delivered during fiscal year 2003-2004, and a financial
27 analysis that describes the certified match procedures, and
28 accountability mechanisms, projects the earnings associated
29 with these procedures, and describes the sources of state
30 match. This plan may not be implemented in any part until
31 approved by the Legislative Budget Commission. If such
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1 approval has not occurred by December 31, 2003, the plan shall
2 be submitted for consideration by the 2004 Legislature.
3 (6) The agency may contract with any public or private
4 entity otherwise authorized by this section on a prepaid or
5 fixed-sum basis for the provision of health care services to
6 recipients. An entity may provide prepaid services to
7 recipients, either directly or through arrangements with other
8 entities, if each entity involved in providing services:
9 (a) Is organized primarily for the purpose of
10 providing health care or other services of the type regularly
11 offered to Medicaid recipients;
12 (b) Ensures that services meet the standards set by
13 the agency for quality, appropriateness, and timeliness;
14 (c) Makes provisions satisfactory to the agency for
15 insolvency protection and ensures that neither enrolled
16 Medicaid recipients nor the agency will be liable for the
17 debts of the entity;
18 (d) Submits to the agency, if a private entity, a
19 financial plan that the agency finds to be fiscally sound and
20 that provides for working capital in the form of cash or
21 equivalent liquid assets excluding revenues from Medicaid
22 premium payments equal to at least the first 3 months of
23 operating expenses or $200,000, whichever is greater;
24 (e) Furnishes evidence satisfactory to the agency of
25 adequate liability insurance coverage or an adequate plan of
26 self-insurance to respond to claims for injuries arising out
27 of the furnishing of health care;
28 (f) Provides, through contract or otherwise, for
29 periodic review of its medical facilities and services, as
30 required by the agency; and
31
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1 (g) Provides organizational, operational, financial,
2 and other information required by the agency.
3 (7) The agency may contract on a prepaid or fixed-sum
4 basis with any health insurer that:
5 (a) Pays for health care services provided to enrolled
6 Medicaid recipients in exchange for a premium payment paid by
7 the agency;
8 (b) Assumes the underwriting risk; and
9 (c) Is organized and licensed under applicable
10 provisions of the Florida Insurance Code and is currently in
11 good standing with the Office of Insurance Regulation.
12 (8) The agency may contract on a prepaid or fixed-sum
13 basis with an exclusive provider organization to provide
14 health care services to Medicaid recipients provided that the
15 exclusive provider organization meets applicable managed care
16 plan requirements in this section, ss. 409.9122, 409.9123,
17 409.9128, and 627.6472, and other applicable provisions of
18 law.
19 (9) The Agency for Health Care Administration may
20 provide cost-effective purchasing of chiropractic services on
21 a fee-for-service basis to Medicaid recipients through
22 arrangements with a statewide chiropractic preferred provider
23 organization incorporated in this state as a not-for-profit
24 corporation. The agency shall ensure that the benefit limits
25 and prior authorization requirements in the current Medicaid
26 program shall apply to the services provided by the
27 chiropractic preferred provider organization.
28 (10) The agency shall not contract on a prepaid or
29 fixed-sum basis for Medicaid services with an entity which
30 knows or reasonably should know that any officer, director,
31 agent, managing employee, or owner of stock or beneficial
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1 interest in excess of 5 percent common or preferred stock, or
2 the entity itself, has been found guilty of, regardless of
3 adjudication, or entered a plea of nolo contendere, or guilty,
4 to:
5 (a) Fraud;
6 (b) Violation of federal or state antitrust statutes,
7 including those proscribing price fixing between competitors
8 and the allocation of customers among competitors;
9 (c) Commission of a felony involving embezzlement,
10 theft, forgery, income tax evasion, bribery, falsification or
11 destruction of records, making false statements, receiving
12 stolen property, making false claims, or obstruction of
13 justice; or
14 (d) Any crime in any jurisdiction which directly
15 relates to the provision of health services on a prepaid or
16 fixed-sum basis.
17 (11) The agency, after notifying the Legislature, may
18 apply for waivers of applicable federal laws and regulations
19 as necessary to implement more appropriate systems of health
20 care for Medicaid recipients and reduce the cost of the
21 Medicaid program to the state and federal governments and
22 shall implement such programs, after legislative approval,
23 within a reasonable period of time after federal approval.
24 These programs must be designed primarily to reduce the need
25 for inpatient care, custodial care and other long-term or
26 institutional care, and other high-cost services.
27 (a) Prior to seeking legislative approval of such a
28 waiver as authorized by this subsection, the agency shall
29 provide notice and an opportunity for public comment. Notice
30 shall be provided to all persons who have made requests of the
31 agency for advance notice and shall be published in the
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1 Florida Administrative Weekly not less than 28 days prior to
2 the intended action.
3 (b) Notwithstanding s. 216.292, funds that are
4 appropriated to the Department of Elderly Affairs for the
5 Assisted Living for the Elderly Medicaid waiver and are not
6 expended shall be transferred to the agency to fund
7 Medicaid-reimbursed nursing home care.
8 (12) The agency shall establish a postpayment
9 utilization control program designed to identify recipients
10 who may inappropriately overuse or underuse Medicaid services
11 and shall provide methods to correct such misuse.
12 (13) The agency shall develop and provide coordinated
13 systems of care for Medicaid recipients and may contract with
14 public or private entities to develop and administer such
15 systems of care among public and private health care providers
16 in a given geographic area.
17 (14) The agency shall operate or contract for the
18 operation of utilization management and incentive systems
19 designed to encourage cost-effective use services.
20 (15)(a) The agency shall operate the Comprehensive
21 Assessment and Review (CARES) nursing facility preadmission
22 screening program to ensure that Medicaid payment for nursing
23 facility care is made only for individuals whose conditions
24 require such care and to ensure that long-term care services
25 are provided in the setting most appropriate to the needs of
26 the person and in the most economical manner possible. The
27 CARES program shall also ensure that individuals participating
28 in Medicaid home and community-based waiver programs meet
29 criteria for those programs, consistent with approved federal
30 waivers.
31
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1 (b) The agency shall operate the CARES program through
2 an interagency agreement with the Department of Elderly
3 Affairs.
4 (c) Prior to making payment for nursing facility
5 services for a Medicaid recipient, the agency must verify that
6 the nursing facility preadmission screening program has
7 determined that the individual requires nursing facility care
8 and that the individual cannot be safely served in
9 community-based programs. The nursing facility preadmission
10 screening program shall refer a Medicaid recipient to a
11 community-based program if the individual could be safely
12 served at a lower cost and the recipient chooses to
13 participate in such program.
14 (d) By January 1 of each year, the agency shall submit
15 a report to the Legislature and the Office of Long-Term-Care
16 Policy describing the operations of the CARES program. The
17 report must describe:
18 1. Rate of diversion to community alternative
19 programs;
20 2. CARES program staffing needs to achieve additional
21 diversions;
22 3. Reasons the program is unable to place individuals
23 in less restrictive settings when such individuals desired
24 such services and could have been served in such settings;
25 4. Barriers to appropriate placement, including
26 barriers due to policies or operations of other agencies or
27 state-funded programs; and
28 5. Statutory changes necessary to ensure that
29 individuals in need of long-term care services receive care in
30 the least restrictive environment.
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1 (16)(a) The agency shall identify health care
2 utilization and price patterns within the Medicaid program
3 which are not cost-effective or medically appropriate and
4 assess the effectiveness of new or alternate methods of
5 providing and monitoring service, and may implement such
6 methods as it considers appropriate. Such methods may include
7 disease management initiatives, an integrated and systematic
8 approach for managing the health care needs of recipients who
9 are at risk of or diagnosed with a specific disease by using
10 best practices, prevention strategies, clinical-practice
11 improvement, clinical interventions and protocols, outcomes
12 research, information technology, and other tools and
13 resources to reduce overall costs and improve measurable
14 outcomes.
15 (b) The responsibility of the agency under this
16 subsection shall include the development of capabilities to
17 identify actual and optimal practice patterns; patient and
18 provider educational initiatives; methods for determining
19 patient compliance with prescribed treatments; fraud, waste,
20 and abuse prevention and detection programs; and beneficiary
21 case management programs.
22 1. The practice pattern identification program shall
23 evaluate practitioner prescribing patterns based on national
24 and regional practice guidelines, comparing practitioners to
25 their peer groups. The agency and its Drug Utilization Review
26 Board shall consult with the Department of Health and a panel
27 of practicing health care professionals consisting of the
28 following: the Speaker of the House of Representatives and the
29 President of the Senate shall each appoint three physicians
30 licensed under chapter 458 or chapter 459; and the Governor
31 shall appoint two pharmacists licensed under chapter 465 and
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1 one dentist licensed under chapter 466 who is an oral surgeon.
2 Terms of the panel members shall expire at the discretion of
3 the appointing official. The panel shall begin its work by
4 August 1, 1999, regardless of the number of appointments made
5 by that date. The advisory panel shall be responsible for
6 evaluating treatment guidelines and recommending ways to
7 incorporate their use in the practice pattern identification
8 program. Practitioners who are prescribing inappropriately or
9 inefficiently, as determined by the agency, may have their
10 prescribing of certain drugs subject to prior authorization or
11 may be terminated from all participation in the Medicaid
12 program.
13 2. The agency shall also develop educational
14 interventions designed to promote the proper use of
15 medications by providers and beneficiaries.
16 3. The agency shall implement a pharmacy fraud, waste,
17 and abuse initiative that may include a surety bond or letter
18 of credit requirement for participating pharmacies, enhanced
19 provider auditing practices, the use of additional fraud and
20 abuse software, recipient management programs for
21 beneficiaries inappropriately using their benefits, and other
22 steps that will eliminate provider and recipient fraud, waste,
23 and abuse. The initiative shall address enforcement efforts to
24 reduce the number and use of counterfeit prescriptions.
25 4. By September 30, 2002, the agency shall contract
26 with an entity in the state to implement a wireless handheld
27 clinical pharmacology drug information database for
28 practitioners. The initiative shall be designed to enhance the
29 agency's efforts to reduce fraud, abuse, and errors in the
30 prescription drug benefit program and to otherwise further the
31 intent of this paragraph.
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1 5. The agency may apply for any federal waivers needed
2 to implement this paragraph.
3 (17) An entity contracting on a prepaid or fixed-sum
4 basis shall, in addition to meeting any applicable statutory
5 surplus requirements, also maintain at all times in the form
6 of cash, investments that mature in less than 180 days
7 allowable as admitted assets by the Office of Insurance
8 Regulation, and restricted funds or deposits controlled by the
9 agency or the Office of Insurance Regulation, a surplus amount
10 equal to one-and-one-half times the entity's monthly Medicaid
11 prepaid revenues. As used in this subsection, the term
12 "surplus" means the entity's total assets minus total
13 liabilities. If an entity's surplus falls below an amount
14 equal to one-and-one-half times the entity's monthly Medicaid
15 prepaid revenues, the agency shall prohibit the entity from
16 engaging in marketing and preenrollment activities, shall
17 cease to process new enrollments, and shall not renew the
18 entity's contract until the required balance is achieved. The
19 requirements of this subsection do not apply:
20 (a) Where a public entity agrees to fund any deficit
21 incurred by the contracting entity; or
22 (b) Where the entity's performance and obligations are
23 guaranteed in writing by a guaranteeing organization which:
24 1. Has been in operation for at least 5 years and has
25 assets in excess of $50 million; or
26 2. Submits a written guarantee acceptable to the
27 agency which is irrevocable during the term of the contracting
28 entity's contract with the agency and, upon termination of the
29 contract, until the agency receives proof of satisfaction of
30 all outstanding obligations incurred under the contract.
31
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1 (18)(a) The agency may require an entity contracting
2 on a prepaid or fixed-sum basis to establish a restricted
3 insolvency protection account with a federally guaranteed
4 financial institution licensed to do business in this state.
5 The entity shall deposit into that account 5 percent of the
6 capitation payments made by the agency each month until a
7 maximum total of 2 percent of the total current contract
8 amount is reached. The restricted insolvency protection
9 account may be drawn upon with the authorized signatures of
10 two persons designated by the entity and two representatives
11 of the agency. If the agency finds that the entity is
12 insolvent, the agency may draw upon the account solely with
13 the two authorized signatures of representatives of the
14 agency, and the funds may be disbursed to meet financial
15 obligations incurred by the entity under the prepaid contract.
16 If the contract is terminated, expired, or not continued, the
17 account balance must be released by the agency to the entity
18 upon receipt of proof of satisfaction of all outstanding
19 obligations incurred under this contract.
20 (b) The agency may waive the insolvency protection
21 account requirement in writing when evidence is on file with
22 the agency of adequate insolvency insurance and reinsurance
23 that will protect enrollees if the entity becomes unable to
24 meet its obligations.
25 (19) An entity that contracts with the agency on a
26 prepaid or fixed-sum basis for the provision of Medicaid
27 services shall reimburse any hospital or physician that is
28 outside the entity's authorized geographic service area as
29 specified in its contract with the agency, and that provides
30 services authorized by the entity to its members, at a rate
31
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1 negotiated with the hospital or physician for the provision of
2 services or according to the lesser of the following:
3 (a) The usual and customary charges made to the
4 general public by the hospital or physician; or
5 (b) The Florida Medicaid reimbursement rate
6 established for the hospital or physician.
7 (20) When a merger or acquisition of a Medicaid
8 prepaid contractor has been approved by the Office of
9 Insurance Regulation pursuant to s. 628.4615, the agency shall
10 approve the assignment or transfer of the appropriate Medicaid
11 prepaid contract upon request of the surviving entity of the
12 merger or acquisition if the contractor and the other entity
13 have been in good standing with the agency for the most recent
14 12-month period, unless the agency determines that the
15 assignment or transfer would be detrimental to the Medicaid
16 recipients or the Medicaid program. To be in good standing,
17 an entity must not have failed accreditation or committed any
18 material violation of the requirements of s. 641.52 and must
19 meet the Medicaid contract requirements. For purposes of this
20 section, a merger or acquisition means a change in controlling
21 interest of an entity, including an asset or stock purchase.
22 (21) Any entity contracting with the agency pursuant
23 to this section to provide health care services to Medicaid
24 recipients is prohibited from engaging in any of the following
25 practices or activities:
26 (a) Practices that are discriminatory, including, but
27 not limited to, attempts to discourage participation on the
28 basis of actual or perceived health status.
29 (b) Activities that could mislead or confuse
30 recipients, or misrepresent the organization, its marketing
31
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1 representatives, or the agency. Violations of this paragraph
2 include, but are not limited to:
3 1. False or misleading claims that marketing
4 representatives are employees or representatives of the state
5 or county, or of anyone other than the entity or the
6 organization by whom they are reimbursed.
7 2. False or misleading claims that the entity is
8 recommended or endorsed by any state or county agency, or by
9 any other organization which has not certified its endorsement
10 in writing to the entity.
11 3. False or misleading claims that the state or county
12 recommends that a Medicaid recipient enroll with an entity.
13 4. Claims that a Medicaid recipient will lose benefits
14 under the Medicaid program, or any other health or welfare
15 benefits to which the recipient is legally entitled, if the
16 recipient does not enroll with the entity.
17 (c) Granting or offering of any monetary or other
18 valuable consideration for enrollment, except as authorized by
19 subsection (22).
20 (d) Door-to-door solicitation of recipients who have
21 not contacted the entity or who have not invited the entity to
22 make a presentation.
23 (e) Solicitation of Medicaid recipients by marketing
24 representatives stationed in state offices unless approved and
25 supervised by the agency or its agent and approved by the
26 affected state agency when solicitation occurs in an office of
27 the state agency. The agency shall ensure that marketing
28 representatives stationed in state offices shall market their
29 managed care plans to Medicaid recipients only in designated
30 areas and in such a way as to not interfere with the
31 recipients' activities in the state office.
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1 (f) Enrollment of Medicaid recipients.
2 (22) The agency may impose a fine for a violation of
3 this section or the contract with the agency by a person or
4 entity that is under contract with the agency. With respect
5 to any nonwillful violation, such fine shall not exceed $2,500
6 per violation. In no event shall such fine exceed an
7 aggregate amount of $10,000 for all nonwillful violations
8 arising out of the same action. With respect to any knowing
9 and willful violation of this section or the contract with the
10 agency, the agency may impose a fine upon the entity in an
11 amount not to exceed $20,000 for each such violation. In no
12 event shall such fine exceed an aggregate amount of $100,000
13 for all knowing and willful violations arising out of the same
14 action.
15 (23) A health maintenance organization or a person or
16 entity exempt from chapter 641 that is under contract with the
17 agency for the provision of health care services to Medicaid
18 recipients may not use or distribute marketing materials used
19 to solicit Medicaid recipients, unless such materials have
20 been approved by the agency. The provisions of this subsection
21 do not apply to general advertising and marketing materials
22 used by a health maintenance organization to solicit both
23 non-Medicaid subscribers and Medicaid recipients.
24 (24) Upon approval by the agency, health maintenance
25 organizations and persons or entities exempt from chapter 641
26 that are under contract with the agency for the provision of
27 health care services to Medicaid recipients may be permitted
28 within the capitation rate to provide additional health
29 benefits that the agency has found are of high quality, are
30 practicably available, provide reasonable value to the
31
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1 recipient, and are provided at no additional cost to the
2 state.
3 (25) The agency shall utilize the statewide health
4 maintenance organization complaint hotline for the purpose of
5 investigating and resolving Medicaid and prepaid health plan
6 complaints, maintaining a record of complaints and confirmed
7 problems, and receiving disenrollment requests made by
8 recipients.
9 (26) The agency shall require the publication of the
10 health maintenance organization's and the prepaid health
11 plan's consumer services telephone numbers and the "800"
12 telephone number of the statewide health maintenance
13 organization complaint hotline on each Medicaid identification
14 card issued by a health maintenance organization or prepaid
15 health plan contracting with the agency to serve Medicaid
16 recipients and on each subscriber handbook issued to a
17 Medicaid recipient.
18 (27) The agency shall establish a health care quality
19 improvement system for those entities contracting with the
20 agency pursuant to this section, incorporating all the
21 standards and guidelines developed by the Medicaid Bureau of
22 the Health Care Financing Administration as a part of the
23 quality assurance reform initiative. The system shall
24 include, but need not be limited to, the following:
25 (a) Guidelines for internal quality assurance
26 programs, including standards for:
27 1. Written quality assurance program descriptions.
28 2. Responsibilities of the governing body for
29 monitoring, evaluating, and making improvements to care.
30 3. An active quality assurance committee.
31 4. Quality assurance program supervision.
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1 5. Requiring the program to have adequate resources to
2 effectively carry out its specified activities.
3 6. Provider participation in the quality assurance
4 program.
5 7. Delegation of quality assurance program activities.
6 8. Credentialing and recredentialing.
7 9. Enrollee rights and responsibilities.
8 10. Availability and accessibility to services and
9 care.
10 11. Ambulatory care facilities.
11 12. Accessibility and availability of medical records,
12 as well as proper recordkeeping and process for record review.
13 13. Utilization review.
14 14. A continuity of care system.
15 15. Quality assurance program documentation.
16 16. Coordination of quality assurance activity with
17 other management activity.
18 17. Delivering care to pregnant women and infants; to
19 elderly and disabled recipients, especially those who are at
20 risk of institutional placement; to persons with developmental
21 disabilities; and to adults who have chronic, high-cost
22 medical conditions.
23 (b) Guidelines which require the entities to conduct
24 quality-of-care studies which:
25 1. Target specific conditions and specific health
26 service delivery issues for focused monitoring and evaluation.
27 2. Use clinical care standards or practice guidelines
28 to objectively evaluate the care the entity delivers or fails
29 to deliver for the targeted clinical conditions and health
30 services delivery issues.
31
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1 3. Use quality indicators derived from the clinical
2 care standards or practice guidelines to screen and monitor
3 care and services delivered.
4 (c) Guidelines for external quality review of each
5 contractor which require: focused studies of patterns of care;
6 individual care review in specific situations; and followup
7 activities on previous pattern-of-care study findings and
8 individual-care-review findings. In designing the external
9 quality review function and determining how it is to operate
10 as part of the state's overall quality improvement system, the
11 agency shall construct its external quality review
12 organization and entity contracts to address each of the
13 following:
14 1. Delineating the role of the external quality review
15 organization.
16 2. Length of the external quality review organization
17 contract with the state.
18 3. Participation of the contracting entities in
19 designing external quality review organization review
20 activities.
21 4. Potential variation in the type of clinical
22 conditions and health services delivery issues to be studied
23 at each plan.
24 5. Determining the number of focused pattern-of-care
25 studies to be conducted for each plan.
26 6. Methods for implementing focused studies.
27 7. Individual care review.
28 8. Followup activities.
29 (28) In order to ensure that children receive health
30 care services for which an entity has already been
31 compensated, an entity contracting with the agency pursuant to
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1 this section shall achieve an annual Early and Periodic
2 Screening, Diagnosis, and Treatment (EPSDT) Service screening
3 rate of at least 60 percent for those recipients continuously
4 enrolled for at least 8 months. The agency shall develop a
5 method by which the EPSDT screening rate shall be calculated.
6 For any entity which does not achieve the annual 60 percent
7 rate, the entity must submit a corrective action plan for the
8 agency's approval. If the entity does not meet the standard
9 established in the corrective action plan during the specified
10 timeframe, the agency is authorized to impose appropriate
11 contract sanctions. At least annually, the agency shall
12 publicly release the EPSDT Services screening rates of each
13 entity it has contracted with on a prepaid basis to serve
14 Medicaid recipients.
15 (29) The agency shall perform enrollments and
16 disenrollments for Medicaid recipients who are eligible for
17 MediPass or managed care plans. Notwithstanding the
18 prohibition contained in paragraph (19)(f), managed care plans
19 may perform preenrollments of Medicaid recipients under the
20 supervision of the agency or its agents. For the purposes of
21 this section, "preenrollment" means the provision of marketing
22 and educational materials to a Medicaid recipient and
23 assistance in completing the application forms, but shall not
24 include actual enrollment into a managed care plan. An
25 application for enrollment shall not be deemed complete until
26 the agency or its agent verifies that the recipient made an
27 informed, voluntary choice. The agency, in cooperation with
28 the Department of Children and Family Services, may test new
29 marketing initiatives to inform Medicaid recipients about
30 their managed care options at selected sites. The agency shall
31 report to the Legislature on the effectiveness of such
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1 initiatives. The agency may contract with a third party to
2 perform managed care plan and MediPass enrollment and
3 disenrollment services for Medicaid recipients and is
4 authorized to adopt rules to implement such services. The
5 agency may adjust the capitation rate only to cover the costs
6 of a third-party enrollment and disenrollment contract, and
7 for agency supervision and management of the managed care plan
8 enrollment and disenrollment contract.
9 (30) Any lists of providers made available to Medicaid
10 recipients, MediPass enrollees, or managed care plan enrollees
11 shall be arranged alphabetically showing the provider's name
12 and specialty and, separately, by specialty in alphabetical
13 order.
14 (31) The agency shall establish an enhanced managed
15 care quality assurance oversight function, to include at least
16 the following components:
17 (a) At least quarterly analysis and followup,
18 including sanctions as appropriate, of managed care
19 participant utilization of services.
20 (b) At least quarterly analysis and followup,
21 including sanctions as appropriate, of quality findings of the
22 Medicaid peer review organization and other external quality
23 assurance programs.
24 (c) At least quarterly analysis and followup,
25 including sanctions as appropriate, of the fiscal viability of
26 managed care plans.
27 (d) At least quarterly analysis and followup,
28 including sanctions as appropriate, of managed care
29 participant satisfaction and disenrollment surveys.
30 (e) The agency shall conduct regular and ongoing
31 Medicaid recipient satisfaction surveys.
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1
2 The analyses and followup activities conducted by the agency
3 under its enhanced managed care quality assurance oversight
4 function shall not duplicate the activities of accreditation
5 reviewers for entities regulated under part III of chapter
6 641, but may include a review of the finding of such
7 reviewers.
8 (32) Each managed care plan that is under contract
9 with the agency to provide health care services to Medicaid
10 recipients shall annually conduct a background check with the
11 Florida Department of Law Enforcement of all persons with
12 ownership interest of 5 percent or more or executive
13 management responsibility for the managed care plan and shall
14 submit to the agency information concerning any such person
15 who has been found guilty of, regardless of adjudication, or
16 has entered a plea of nolo contendere or guilty to, any of the
17 offenses listed in s. 435.03.
18 (33) The agency shall, by rule, develop a process
19 whereby a Medicaid managed care plan enrollee who wishes to
20 enter hospice care may be disenrolled from the managed care
21 plan within 24 hours after contacting the agency regarding
22 such request. The agency rule shall include a methodology for
23 the agency to recoup managed care plan payments on a pro rata
24 basis if payment has been made for the enrollment month when
25 disenrollment occurs.
26 (34) The agency and entities which contract with the
27 agency to provide health care services to Medicaid recipients
28 under this section or s. 409.9122 must comply with the
29 provisions of s. 641.513 in providing emergency services and
30 care to Medicaid recipients and MediPass recipients.
31
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1 (35) All entities providing health care services to
2 Medicaid recipients shall make available, and encourage all
3 pregnant women and mothers with infants to receive, and
4 provide documentation in the medical records to reflect, the
5 following:
6 (a) Healthy Start prenatal or infant screening.
7 (b) Healthy Start care coordination, when screening or
8 other factors indicate need.
9 (c) Healthy Start enhanced services in accordance with
10 the prenatal or infant screening results.
11 (d) Immunizations in accordance with recommendations
12 of the Advisory Committee on Immunization Practices of the
13 United States Public Health Service and the American Academy
14 of Pediatrics, as appropriate.
15 (e) Counseling and services for family planning to all
16 women and their partners.
17 (f) A scheduled postpartum visit for the purpose of
18 voluntary family planning, to include discussion of all
19 methods of contraception, as appropriate.
20 (g) Referral to the Special Supplemental Nutrition
21 Program for Women, Infants, and Children (WIC).
22 (36) Any entity that provides Medicaid prepaid health
23 plan services shall ensure the appropriate coordination of
24 health care services with an assisted living facility in cases
25 where a Medicaid recipient is both a member of the entity's
26 prepaid health plan and a resident of the assisted living
27 facility. If the entity is at risk for Medicaid targeted case
28 management and behavioral health services, the entity shall
29 inform the assisted living facility of the procedures to
30 follow should an emergent condition arise.
31
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1 (37) The agency may seek and implement federal waivers
2 necessary to provide for cost-effective purchasing of home
3 health services, private duty nursing services,
4 transportation, independent laboratory services, and durable
5 medical equipment and supplies through competitive bidding
6 pursuant to s. 287.057. The agency may request appropriate
7 waivers from the federal Health Care Financing Administration
8 in order to competitively bid such services. The agency may
9 exclude providers not selected through the bidding process
10 from the Medicaid provider network.
11 (38) The Agency for Health Care Administration is
12 directed to issue a request for proposal or intent to
13 negotiate to implement on a demonstration basis an outpatient
14 specialty services pilot project in a rural and urban county
15 in the state. As used in this subsection, the term
16 "outpatient specialty services" means clinical laboratory,
17 diagnostic imaging, and specified home medical services to
18 include durable medical equipment, prosthetics and orthotics,
19 and infusion therapy.
20 (a) The entity that is awarded the contract to provide
21 Medicaid managed care outpatient specialty services must, at a
22 minimum, meet the following criteria:
23 1. The entity must be licensed by the Office of
24 Insurance Regulation under part II of chapter 641.
25 2. The entity must be experienced in providing
26 outpatient specialty services.
27 3. The entity must demonstrate to the satisfaction of
28 the agency that it provides high-quality services to its
29 patients.
30 4. The entity must demonstrate that it has in place a
31 complaints and grievance process to assist Medicaid recipients
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1 enrolled in the pilot managed care program to resolve
2 complaints and grievances.
3 (b) The pilot managed care program shall operate for a
4 period of 3 years. The objective of the pilot program shall
5 be to determine the cost-effectiveness and effects on
6 utilization, access, and quality of providing outpatient
7 specialty services to Medicaid recipients on a prepaid,
8 capitated basis.
9 (c) The agency shall conduct a quality assurance
10 review of the prepaid health clinic each year that the
11 demonstration program is in effect. The prepaid health clinic
12 is responsible for all expenses incurred by the agency in
13 conducting a quality assurance review.
14 (d) The entity that is awarded the contract to provide
15 outpatient specialty services to Medicaid recipients shall
16 report data required by the agency in a format specified by
17 the agency, for the purpose of conducting the evaluation
18 required in paragraph (e).
19 (e) The agency shall conduct an evaluation of the
20 pilot managed care program and report its findings to the
21 Governor and the Legislature by no later than January 1, 2001.
22 (39) The agency shall enter into agreements with
23 not-for-profit organizations based in this state for the
24 purpose of providing vision screening.
25 (40)(a) The agency shall implement a Medicaid
26 prescribed-drug spending-control program that includes the
27 following components:
28 1. Medicaid prescribed-drug coverage for brand-name
29 drugs for adult Medicaid recipients is limited to the
30 dispensing of four brand-name drugs per month per recipient.
31 Children are exempt from this restriction. Antiretroviral
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1 agents are excluded from this limitation. No requirements for
2 prior authorization or other restrictions on medications used
3 to treat mental illnesses such as schizophrenia, severe
4 depression, or bipolar disorder may be imposed on Medicaid
5 recipients. Medications that will be available without
6 restriction for persons with mental illnesses include atypical
7 antipsychotic medications, conventional antipsychotic
8 medications, selective serotonin reuptake inhibitors, and
9 other medications used for the treatment of serious mental
10 illnesses. The agency shall also limit the amount of a
11 prescribed drug dispensed to no more than a 34-day supply. The
12 agency shall continue to provide unlimited generic drugs,
13 contraceptive drugs and items, and diabetic supplies. Although
14 a drug may be included on the preferred drug formulary, it
15 would not be exempt from the four-brand limit. The agency may
16 authorize exceptions to the brand-name-drug restriction based
17 upon the treatment needs of the patients, only when such
18 exceptions are based on prior consultation provided by the
19 agency or an agency contractor, but the agency must establish
20 procedures to ensure that:
21 a. There will be a response to a request for prior
22 consultation by telephone or other telecommunication device
23 within 24 hours after receipt of a request for prior
24 consultation;
25 b. A 72-hour supply of the drug prescribed will be
26 provided in an emergency or when the agency does not provide a
27 response within 24 hours as required by sub-subparagraph a.;
28 and
29 c. Except for the exception for nursing home residents
30 and other institutionalized adults and except for drugs on the
31 restricted formulary for which prior authorization may be
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1 sought by an institutional or community pharmacy, prior
2 authorization for an exception to the brand-name-drug
3 restriction is sought by the prescriber and not by the
4 pharmacy. When prior authorization is granted for a patient in
5 an institutional setting beyond the brand-name-drug
6 restriction, such approval is authorized for 12 months and
7 monthly prior authorization is not required for that patient.
8 2. Reimbursement to pharmacies for Medicaid prescribed
9 drugs shall be set at the average wholesale price less 13.25
10 percent.
11 3. The agency shall develop and implement a process
12 for managing the drug therapies of Medicaid recipients who are
13 using significant numbers of prescribed drugs each month. The
14 management process may include, but is not limited to,
15 comprehensive, physician-directed medical-record reviews,
16 claims analyses, and case evaluations to determine the medical
17 necessity and appropriateness of a patient's treatment plan
18 and drug therapies. The agency may contract with a private
19 organization to provide drug-program-management services. The
20 Medicaid drug benefit management program shall include
21 initiatives to manage drug therapies for HIV/AIDS patients,
22 patients using 20 or more unique prescriptions in a 180-day
23 period, and the top 1,000 patients in annual spending.
24 4. The agency may limit the size of its pharmacy
25 network based on need, competitive bidding, price
26 negotiations, credentialing, or similar criteria. The agency
27 shall give special consideration to rural areas in determining
28 the size and location of pharmacies included in the Medicaid
29 pharmacy network. A pharmacy credentialing process may include
30 criteria such as a pharmacy's full-service status, location,
31 size, patient educational programs, patient consultation,
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1 disease-management services, and other characteristics. The
2 agency may impose a moratorium on Medicaid pharmacy enrollment
3 when it is determined that it has a sufficient number of
4 Medicaid-participating providers.
5 5. The agency shall develop and implement a program
6 that requires Medicaid practitioners who prescribe drugs to
7 use a counterfeit-proof prescription pad for Medicaid
8 prescriptions. The agency shall require the use of
9 standardized counterfeit-proof prescription pads by
10 Medicaid-participating prescribers or prescribers who write
11 prescriptions for Medicaid recipients. The agency may
12 implement the program in targeted geographic areas or
13 statewide.
14 6. The agency may enter into arrangements that require
15 manufacturers of generic drugs prescribed to Medicaid
16 recipients to provide rebates of at least 15.1 percent of the
17 average manufacturer price for the manufacturer's generic
18 products. These arrangements shall require that if a
19 generic-drug manufacturer pays federal rebates for
20 Medicaid-reimbursed drugs at a level below 15.1 percent, the
21 manufacturer must provide a supplemental rebate to the state
22 in an amount necessary to achieve a 15.1-percent rebate level.
23 7. The agency may establish a preferred drug formulary
24 in accordance with 42 U.S.C. s. 1396r-8, and, pursuant to the
25 establishment of such formulary, it is authorized to negotiate
26 supplemental rebates from manufacturers that are in addition
27 to those required by Title XIX of the Social Security Act and
28 at no less than 10 percent of the average manufacturer price
29 as defined in 42 U.S.C. s. 1936 on the last day of a quarter
30 unless the federal or supplemental rebate, or both, equals or
31 exceeds 25 percent. There is no upper limit on the
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1 supplemental rebates the agency may negotiate. The agency may
2 determine that specific products, brand-name or generic, are
3 competitive at lower rebate percentages. Agreement to pay the
4 minimum supplemental rebate percentage will guarantee a
5 manufacturer that the Medicaid Pharmaceutical and Therapeutics
6 Committee will consider a product for inclusion on the
7 preferred drug formulary. However, a pharmaceutical
8 manufacturer is not guaranteed placement on the formulary by
9 simply paying the minimum supplemental rebate. Agency
10 decisions will be made on the clinical efficacy of a drug and
11 recommendations of the Medicaid Pharmaceutical and
12 Therapeutics Committee, as well as the price of competing
13 products minus federal and state rebates. The agency is
14 authorized to contract with an outside agency or contractor to
15 conduct negotiations for supplemental rebates. For the
16 purposes of this section, the term "supplemental rebates" may
17 include, at the agency's discretion, cash rebates and other
18 program benefits that offset a Medicaid expenditure. Such
19 other program benefits may include, but are not limited to,
20 disease management programs, drug product donation programs,
21 drug utilization control programs, prescriber and beneficiary
22 counseling and education, fraud and abuse initiatives, and
23 other services or administrative investments with guaranteed
24 savings to the Medicaid program in the same year the rebate
25 reduction is included in the General Appropriations Act. The
26 agency is authorized to seek any federal waivers to implement
27 this initiative.
28 8. The agency shall establish an advisory committee
29 for the purposes of studying the feasibility of using a
30 restricted drug formulary for nursing home residents and other
31 institutionalized adults. The committee shall be comprised of
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1 seven members appointed by the Secretary of Health Care
2 Administration. The committee members shall include two
3 physicians licensed under chapter 458 or chapter 459; three
4 pharmacists licensed under chapter 465 and appointed from a
5 list of recommendations provided by the Florida Long-Term Care
6 Pharmacy Alliance; and two pharmacists licensed under chapter
7 465.
8 9. The Agency for Health Care Administration shall
9 expand home delivery of pharmacy products. To assist Medicaid
10 patients in securing their prescriptions and reduce program
11 costs, the agency shall expand its current mail-order-pharmacy
12 diabetes-supply program to include all generic and brand-name
13 drugs used by Medicaid patients with diabetes. Medicaid
14 recipients in the current program may obtain nondiabetes drugs
15 on a voluntary basis. This initiative is limited to the
16 geographic area covered by the current contract. The agency
17 may seek and implement any federal waivers necessary to
18 implement this subparagraph.
19 (b) The agency shall implement this subsection to the
20 extent that funds are appropriated to administer the Medicaid
21 prescribed-drug spending-control program. The agency may
22 contract all or any part of this program to private
23 organizations.
24 (c) The agency shall submit quarterly reports to the
25 Governor, the President of the Senate, and the Speaker of the
26 House of Representatives which must include, but need not be
27 limited to, the progress made in implementing this subsection
28 and its effect on Medicaid prescribed-drug expenditures.
29 (41) Notwithstanding the provisions of chapter 287,
30 the agency may, at its discretion, renew a contract or
31 contracts for fiscal intermediary services one or more times
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1 for such periods as the agency may decide; however, all such
2 renewals may not combine to exceed a total period longer than
3 the term of the original contract.
4 (42) The agency shall provide for the development of a
5 demonstration project by establishment in Miami-Dade County of
6 a long-term-care facility licensed pursuant to chapter 395 to
7 improve access to health care for a predominantly minority,
8 medically underserved, and medically complex population and to
9 evaluate alternatives to nursing home care and general acute
10 care for such population. Such project is to be located in a
11 health care condominium and colocated with licensed facilities
12 providing a continuum of care. The establishment of this
13 project is not subject to the provisions of s. 408.036 or s.
14 408.039. The agency shall report its findings to the
15 Governor, the President of the Senate, and the Speaker of the
16 House of Representatives by January 1, 2003.
17 (43) The agency shall develop and implement a
18 utilization management program for Medicaid-eligible
19 recipients for the management of occupational, physical,
20 respiratory, and speech therapies. The agency shall establish
21 a utilization program that may require prior authorization in
22 order to ensure medically necessary and cost-effective
23 treatments. The program shall be operated in accordance with a
24 federally approved waiver program or state plan amendment. The
25 agency may seek a federal waiver or state plan amendment to
26 implement this program. The agency may also competitively
27 procure these services from an outside vendor on a regional or
28 statewide basis.
29 (44) The agency may contract on a prepaid or fixed-sum
30 basis with appropriately licensed prepaid dental health plans
31 to provide dental services.
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1 (45) The agency may mandate a recipient's
2 participation in a provider lock-in program limiting the
3 receipt of goods or services to a single specified provider.
4 The lock-in programs shall include, but are not limited to,
5 pharmacies. The agency shall seek any federal waivers
6 necessary to implement this subsection.
7 Section 5. Section 409.913, Florida Statutes, is
8 amended to read:
9 409.913 Oversight of the integrity of the Medicaid
10 program.--The agency shall operate a program to oversee the
11 activities of Florida Medicaid recipients, and providers and
12 their representatives, to ensure that fraudulent and abusive
13 behavior and neglect of recipients occur to the minimum extent
14 possible, and to recover overpayments and impose sanctions as
15 appropriate. Beginning January 1, 2003, and each year
16 thereafter, the agency and the Medicaid Fraud Control Unit of
17 the Department of Legal Affairs shall submit a joint report to
18 the Legislature documenting the effectiveness of the state's
19 efforts to control Medicaid fraud and abuse and to recover
20 Medicaid overpayments during the previous fiscal year. The
21 report must describe the number of cases opened and
22 investigated each year; the sources of the cases opened; the
23 disposition of the cases closed each year; the amount of
24 overpayments alleged in preliminary and final audit letters;
25 the number and amount of fines or penalties imposed; any
26 reductions in overpayment amounts negotiated in settlement
27 agreements or by other means; the amount of final agency
28 determinations of overpayments; the amount deducted from
29 federal claiming as a result of overpayments; the amount of
30 overpayments recovered each year; the amount of cost of
31 investigation recovered each year; the average length of time
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1 to collect from the time the case was opened until the
2 overpayment is paid in full; the amount determined as
3 uncollectible and the portion of the uncollectible amount
4 subsequently reclaimed from the Federal Government; the number
5 of providers, by type, that are terminated from participation
6 in the Medicaid program as a result of fraud and abuse; and
7 all costs associated with discovering and prosecuting cases of
8 Medicaid overpayments and making recoveries in such cases. The
9 report must also document actions taken to prevent
10 overpayments and the number of providers prevented from
11 enrolling in or reenrolling in the Medicaid program as a
12 result of documented Medicaid fraud and abuse and must
13 recommend changes necessary to prevent or recover
14 overpayments. For the 2001-2002 fiscal year, the agency shall
15 prepare a report that contains as much of this information as
16 is available to it.
17 (1) For the purposes of this section, the term:
18 (a) "Abuse" means:
19 1. Provider practices that are inconsistent with
20 generally accepted business or medical practices and that
21 result in an unnecessary cost to the Medicaid program or in
22 reimbursement for goods or services that are not medically
23 necessary or that fail to meet professionally recognized
24 standards for health care.
25 2. Recipient practices that result in unnecessary cost
26 to the Medicaid program.
27 (b) "Complaint" means an allegation that fraud, abuse,
28 or an overpayment has occurred.
29 (c) "Fraud" means an intentional deception or
30 misrepresentation made by a person with the knowledge that the
31 deception results in unauthorized benefit to herself or
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1 himself or another person. The term includes any act that
2 constitutes fraud under applicable federal or state law.
3 (d) "Medical necessity" or "medically necessary" means
4 any goods or services necessary to palliate the effects of a
5 terminal condition, or to prevent, diagnose, correct, cure,
6 alleviate, or preclude deterioration of a condition that
7 threatens life, causes pain or suffering, or results in
8 illness or infirmity, which goods or services are provided in
9 accordance with generally accepted standards of medical
10 practice. For purposes of determining Medicaid reimbursement,
11 the agency is the final arbiter of medical necessity.
12 Determinations of medical necessity must be made by a licensed
13 physician employed by or under contract with the agency and
14 must be based upon information available at the time the goods
15 or services are provided.
16 (e) "Overpayment" includes any amount that is not
17 authorized to be paid by the Medicaid program whether paid as
18 a result of inaccurate or improper cost reporting, improper
19 claiming, unacceptable practices, fraud, abuse, or mistake.
20 (f) "Person" means any natural person, corporation,
21 partnership, association, clinic, group, or other entity,
22 whether or not such person is enrolled in the Medicaid program
23 or is a provider of health care.
24 (2) The agency shall conduct, or cause to be conducted
25 by contract or otherwise, reviews, investigations, analyses,
26 audits, or any combination thereof, to determine possible
27 fraud, abuse, overpayment, or recipient neglect in the
28 Medicaid program and shall report the findings of any
29 overpayments in audit reports as appropriate.
30 (3) The agency may conduct, or may contract for,
31 prepayment review of provider claims to ensure cost-effective
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1 purchasing; to ensure that, billing by a provider to the
2 agency is in accordance with applicable provisions of all
3 Medicaid rules, regulations, handbooks, and policies and in
4 accordance with federal, state, and local law;, and to ensure
5 that appropriate provision of care is rendered to Medicaid
6 recipients. Such prepayment reviews may be conducted as
7 determined appropriate by the agency, without any suspicion or
8 allegation of fraud, abuse, or neglect, and may last for up to
9 1 year. Unless the agency has reliable evidence of fraud,
10 misrepresentation, abuse, or neglect, claims shall be
11 adjudicated for denial or payment within 90 days after the
12 date complete documentation is received by the agency for
13 review. If there is reliable evidence of fraud,
14 misrepresentation, abuse, or neglect, claims shall be
15 adjudicated for denial or payment within 180 days after the
16 date complete documentation is received by the agency for
17 review.
18 (4) Any suspected criminal violation identified by the
19 agency must be referred to the Medicaid Fraud Control Unit of
20 the Office of the Attorney General for investigation. The
21 agency and the Attorney General shall enter into a memorandum
22 of understanding, which must include, but need not be limited
23 to, a protocol for regularly sharing information and
24 coordinating casework. The protocol must establish a
25 procedure for the referral by the agency of cases involving
26 suspected Medicaid fraud to the Medicaid Fraud Control Unit
27 for investigation, and the return to the agency of those cases
28 where investigation determines that administrative action by
29 the agency is appropriate. Offices of the Medicaid program
30 integrity program and the Medicaid Fraud Control Unit of the
31 Department of Legal Affairs, shall, to the extent possible, be
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1 collocated. The agency and the Department of Legal Affairs
2 shall periodically conduct joint training and other joint
3 activities designed to increase communication and coordination
4 in recovering overpayments.
5 (5) A Medicaid provider is subject to having goods and
6 services that are paid for by the Medicaid program reviewed by
7 an appropriate peer-review organization designated by the
8 agency. The written findings of the applicable peer-review
9 organization are admissible in any court or administrative
10 proceeding as evidence of medical necessity or the lack
11 thereof.
12 (6) Any notice required to be given to a provider
13 under this section is presumed to be sufficient notice if sent
14 to the address last shown on the provider enrollment file. It
15 is the responsibility of the provider to furnish and keep the
16 agency informed of the provider's current address. United
17 States Postal Service proof of mailing or certified or
18 registered mailing of such notice to the provider at the
19 address shown on the provider enrollment file constitutes
20 sufficient proof of notice. Any notice required to be given to
21 the agency by this section must be sent to the agency at an
22 address designated by rule.
23 (7) When presenting a claim for payment under the
24 Medicaid program, a provider has an affirmative duty to
25 supervise the provision of, and be responsible for, goods and
26 services claimed to have been provided, to supervise and be
27 responsible for preparation and submission of the claim, and
28 to present a claim that is true and accurate and that is for
29 goods and services that:
30 (a) Have actually been furnished to the recipient by
31 the provider prior to submitting the claim.
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1 (b) Are Medicaid-covered goods or services that are
2 medically necessary.
3 (c) Are of a quality comparable to those furnished to
4 the general public by the provider's peers.
5 (d) Have not been billed in whole or in part to a
6 recipient or a recipient's responsible party, except for such
7 copayments, coinsurance, or deductibles as are authorized by
8 the agency.
9 (e) Are provided in accord with applicable provisions
10 of all Medicaid rules, regulations, handbooks, and policies
11 and in accordance with federal, state, and local law.
12 (f) Are documented by records made at the time the
13 goods or services were provided, demonstrating the medical
14 necessity for the goods or services rendered. Medicaid goods
15 or services are excessive or not medically necessary unless
16 both the medical basis and the specific need for them are
17 fully and properly documented in the recipient's medical
18 record.
19
20 The agency may deny payment or require repayment for goods or
21 services that are not presented as required in this
22 subsection.
23 (8) The agency shall not reimburse any person or
24 entity for any prescription for medications, medical supplies,
25 or medical services if the prescription was written by a
26 physician or other prescribing practitioner who is not
27 enrolled in the Medicaid program. This section does not apply:
28 (a) In instances involving bona fide emergency medical
29 conditions as determined by the agency;
30 (b) To a provider of medical services to a patient in
31 a hospital emergency department;
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1 (c) To bono fide pro bono services by preapproved
2 non-Medicaid providers as determined by the agency;
3 (d) To prescribing physicians who are board-certified
4 specialists treating Medicaid recipients referred for
5 treatment by a treating physician who is enrolled in the
6 Medicaid program; or
7 (e) To prescriptions written for dually eligible
8 Medicare beneficiaries by an authorized Medicare provider who
9 is not enrolled in the Medicaid program.
10 (9)(8) A Medicaid provider shall retain medical,
11 professional, financial, and business records pertaining to
12 services and goods furnished to a Medicaid recipient and
13 billed to Medicaid for a period of 5 years after the date of
14 furnishing such services or goods. The agency may investigate,
15 review, or analyze such records, which must be made available
16 during normal business hours. However, 24-hour notice must be
17 provided if patient treatment would be disrupted. The provider
18 is responsible for furnishing to the agency, and keeping the
19 agency informed of the location of, the provider's
20 Medicaid-related records. The authority of the agency to
21 obtain Medicaid-related records from a provider is neither
22 curtailed nor limited during a period of litigation between
23 the agency and the provider.
24 (10)(9) Payments for the services of billing agents or
25 persons participating in the preparation of a Medicaid claim
26 shall not be based on amounts for which they bill nor based on
27 the amount a provider receives from the Medicaid program.
28 (11)(10) The agency may deny payment or require
29 repayment for inappropriate, medically unnecessary, or
30 excessive goods or services from the person furnishing them,
31
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1 the person under whose supervision they were furnished, or the
2 person causing them to be furnished.
3 (12)(11) The complaint and all information obtained
4 pursuant to an investigation of a Medicaid provider, or the
5 authorized representative or agent of a provider, relating to
6 an allegation of fraud, abuse, or neglect are confidential and
7 exempt from the provisions of s. 119.07(1):
8 (a) Until the agency takes final agency action with
9 respect to the provider and requires repayment of any
10 overpayment, or imposes an administrative sanction;
11 (b) Until the Attorney General refers the case for
12 criminal prosecution;
13 (c) Until 10 days after the complaint is determined
14 without merit; or
15 (d) At all times if the complaint or information is
16 otherwise protected by law.
17 (13)(12) The agency may terminate participation of a
18 Medicaid provider in the Medicaid program and may seek civil
19 remedies or impose other administrative sanctions against a
20 Medicaid provider, if the provider has been:
21 (a) Convicted of a criminal offense related to the
22 delivery of any health care goods or services, including the
23 performance of management or administrative functions relating
24 to the delivery of health care goods or services;
25 (b) Convicted of a criminal offense under federal law
26 or the law of any state relating to the practice of the
27 provider's profession; or
28 (c) Found by a court of competent jurisdiction to have
29 neglected or physically abused a patient in connection with
30 the delivery of health care goods or services.
31
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1 (14)(13) If the provider has been suspended or
2 terminated from participation in the Medicaid program or the
3 Medicare program by the Federal Government or any state, the
4 agency must immediately suspend or terminate, as appropriate,
5 the provider's participation in the Florida Medicaid program
6 for a period no less than that imposed by the Federal
7 Government or any other state, and may not enroll such
8 provider in the Florida Medicaid program while such foreign
9 suspension or termination remains in effect. This sanction is
10 in addition to all other remedies provided by law.
11 (15)(14) The agency may seek any remedy provided by
12 law, including, but not limited to, the remedies provided in
13 subsections (13)(12) and (16)(15) and s. 812.035, if:
14 (a) The provider's license has not been renewed, or
15 has been revoked, suspended, or terminated, for cause, by the
16 licensing agency of any state;
17 (b) The provider has failed to make available or has
18 refused access to Medicaid-related records to an auditor,
19 investigator, or other authorized employee or agent of the
20 agency, the Attorney General, a state attorney, or the Federal
21 Government;
22 (c) The provider has not furnished or has failed to
23 make available such Medicaid-related records as the agency has
24 found necessary to determine whether Medicaid payments are or
25 were due and the amounts thereof;
26 (d) The provider has failed to maintain medical
27 records made at the time of service, or prior to service if
28 prior authorization is required, demonstrating the necessity
29 and appropriateness of the goods or services rendered;
30 (e) The provider is not in compliance with provisions
31 of Medicaid provider publications that have been adopted by
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1 reference as rules in the Florida Administrative Code; with
2 provisions of state or federal laws, rules, or regulations;
3 with provisions of the provider agreement between the agency
4 and the provider; or with certifications found on claim forms
5 or on transmittal forms for electronically submitted claims
6 that are submitted by the provider or authorized
7 representative, as such provisions apply to the Medicaid
8 program;
9 (f) The provider or person who ordered or prescribed
10 the care, services, or supplies has furnished, or ordered the
11 furnishing of, goods or services to a recipient which are
12 inappropriate, unnecessary, excessive, or harmful to the
13 recipient or are of inferior quality;
14 (g) The provider has demonstrated a pattern of failure
15 to provide goods or services that are medically necessary;
16 (h) The provider or an authorized representative of
17 the provider, or a person who ordered or prescribed the goods
18 or services, has submitted or caused to be submitted false or
19 a pattern of erroneous Medicaid claims that have resulted in
20 overpayments to a provider or that exceed those to which the
21 provider was entitled under the Medicaid program;
22 (i) The provider or an authorized representative of
23 the provider, or a person who has ordered or prescribed the
24 goods or services, has submitted or caused to be submitted a
25 Medicaid provider enrollment application, a request for prior
26 authorization for Medicaid services, a drug exception request,
27 or a Medicaid cost report that contains materially false or
28 incorrect information;
29 (j) The provider or an authorized representative of
30 the provider has collected from or billed a recipient or a
31 recipient's responsible party improperly for amounts that
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1 should not have been so collected or billed by reason of the
2 provider's billing the Medicaid program for the same service;
3 (k) The provider or an authorized representative of
4 the provider has included in a cost report costs that are not
5 allowable under a Florida Title XIX reimbursement plan, after
6 the provider or authorized representative had been advised in
7 an audit exit conference or audit report that the costs were
8 not allowable;
9 (l) The provider is charged by information or
10 indictment with fraudulent billing practices. The sanction
11 applied for this reason is limited to suspension of the
12 provider's participation in the Medicaid program for the
13 duration of the indictment unless the provider is found guilty
14 pursuant to the information or indictment;
15 (m) The provider or a person who has ordered, or
16 prescribed the goods or services is found liable for negligent
17 practice resulting in death or injury to the provider's
18 patient;
19 (n) The provider fails to demonstrate that it had
20 available during a specific audit or review period sufficient
21 quantities of goods, or sufficient time in the case of
22 services, to support the provider's billings to the Medicaid
23 program;
24 (o) The provider has failed to comply with the notice
25 and reporting requirements of s. 409.907;
26 (p) The agency has received reliable information of
27 patient abuse or neglect or of any act prohibited by s.
28 409.920; or
29 (q) The provider has failed to comply with an
30 agreed-upon repayment schedule.
31
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1 (16)(15) The agency shall impose any of the following
2 sanctions or disincentives on a provider or a person for any
3 of the acts described in subsection (15)(14):
4 (a) Suspension for a specific period of time of not
5 more than 1 year. Suspension shall preclude participation in
6 the Medicaid program, which includes any action that results
7 in a claim for payment to the Medicaid program as a result of
8 furnishing, supervising a person who is furnishing, or causing
9 a person to furnish goods or services.
10 (b) Termination for a specific period of time of from
11 more than 1 year to 20 years. Termination shall preclude
12 participation in the Medicaid program, which includes any
13 action that results in a claim for payment to the Medicaid
14 program as a result of furnishing, supervising a person who is
15 furnishing, or causing a person to furnish goods or services.
16 (c) Imposition of a fine of up to $5,000 for each
17 violation. Each day that an ongoing violation continues, such
18 as refusing to furnish Medicaid-related records or refusing
19 access to records, is considered, for the purposes of this
20 section, to be a separate violation. Each instance of
21 improper billing of a Medicaid recipient; each instance of
22 including an unallowable cost on a hospital or nursing home
23 Medicaid cost report after the provider or authorized
24 representative has been advised in an audit exit conference or
25 previous audit report of the cost unallowability; each
26 instance of furnishing a Medicaid recipient goods or
27 professional services that are inappropriate or of inferior
28 quality as determined by competent peer judgment; each
29 instance of knowingly submitting a materially false or
30 erroneous Medicaid provider enrollment application, request
31 for prior authorization for Medicaid services, drug exception
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1 request, or cost report; each instance of inappropriate
2 prescribing of drugs for a Medicaid recipient as determined by
3 competent peer judgment; and each false or erroneous Medicaid
4 claim leading to an overpayment to a provider is considered,
5 for the purposes of this section, to be a separate violation.
6 (d) Immediate suspension, if the agency has received
7 information of patient abuse or neglect or of any act
8 prohibited by s. 409.920. Upon suspension, the agency must
9 issue an immediate final order under s. 120.569(2)(n).
10 (e) A fine, not to exceed $10,000, for a violation of
11 paragraph (15)(i) (14)(i).
12 (f) Imposition of liens against provider assets,
13 including, but not limited to, financial assets and real
14 property, not to exceed the amount of fines or recoveries
15 sought, upon entry of an order determining that such moneys
16 are due or recoverable.
17 (g) Prepayment reviews of claims for a specified
18 period of time.
19 (h) Comprehensive followup reviews of providers every
20 6 months to ensure that they are billing Medicaid correctly.
21 (i) Corrective-action plans that would remain in
22 effect for providers for up to 3 years and that would be
23 monitored by the agency every 6 months while in effect.
24 (j) Other remedies as permitted by law to effect the
25 recovery of a fine or overpayment.
26
27 The Secretary of Health Care Administration may make a
28 determination that imposition of a sanction or disincentive is
29 not in the best interest of the Medicaid program, in which
30 case a sanction or disincentive shall not be imposed.
31
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1 (17)(16) In determining the appropriate administrative
2 sanction to be applied, or the duration of any suspension or
3 termination, the agency shall consider:
4 (a) The seriousness and extent of the violation or
5 violations.
6 (b) Any prior history of violations by the provider
7 relating to the delivery of health care programs which
8 resulted in either a criminal conviction or in administrative
9 sanction or penalty.
10 (c) Evidence of continued violation within the
11 provider's management control of Medicaid statutes, rules,
12 regulations, or policies after written notification to the
13 provider of improper practice or instance of violation.
14 (d) The effect, if any, on the quality of medical care
15 provided to Medicaid recipients as a result of the acts of the
16 provider.
17 (e) Any action by a licensing agency respecting the
18 provider in any state in which the provider operates or has
19 operated.
20 (f) The apparent impact on access by recipients to
21 Medicaid services if the provider is suspended or terminated,
22 in the best judgment of the agency.
23
24 The agency shall document the basis for all sanctioning
25 actions and recommendations.
26 (18)(17) The agency may take action to sanction,
27 suspend, or terminate a particular provider working for a
28 group provider, and may suspend or terminate Medicaid
29 participation at a specific location, rather than or in
30 addition to taking action against an entire group.
31
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1 (19)(18) The agency shall establish a process for
2 conducting followup reviews of a sampling of providers who
3 have a history of overpayment under the Medicaid program.
4 This process must consider the magnitude of previous fraud or
5 abuse and the potential effect of continued fraud or abuse on
6 Medicaid costs.
7 (20)(19) In making a determination of overpayment to a
8 provider, the agency must use accepted and valid auditing,
9 accounting, analytical, statistical, or peer-review methods,
10 or combinations thereof. Appropriate statistical methods may
11 include, but are not limited to, sampling and extension to the
12 population, parametric and nonparametric statistics, tests of
13 hypotheses, and other generally accepted statistical methods.
14 Appropriate analytical methods may include, but are not
15 limited to, reviews to determine variances between the
16 quantities of products that a provider had on hand and
17 available to be purveyed to Medicaid recipients during the
18 review period and the quantities of the same products paid for
19 by the Medicaid program for the same period, taking into
20 appropriate consideration sales of the same products to
21 non-Medicaid customers during the same period. In meeting its
22 burden of proof in any administrative or court proceeding, the
23 agency may introduce the results of such statistical methods
24 as evidence of overpayment.
25 (21)(20) When making a determination that an
26 overpayment has occurred, the agency shall prepare and issue
27 an audit report to the provider showing the calculation of
28 overpayments.
29 (22)(21) The audit report, supported by agency work
30 papers, showing an overpayment to a provider constitutes
31 evidence of the overpayment. A provider may not present or
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1 elicit testimony, either on direct examination or
2 cross-examination in any court or administrative proceeding,
3 regarding the purchase or acquisition by any means of drugs,
4 goods, or supplies; sales or divestment by any means of drugs,
5 goods, or supplies; or inventory of drugs, goods, or supplies,
6 unless such acquisition, sales, divestment, or inventory is
7 documented by written invoices, written inventory records, or
8 other competent written documentary evidence maintained in the
9 normal course of the provider's business. Notwithstanding the
10 applicable rules of discovery, all documentation that will be
11 offered as evidence at an administrative hearing on a Medicaid
12 overpayment must be exchanged by all parties at least 14 days
13 before the administrative hearing or must be excluded from
14 consideration.
15 (23)(22)(a) In an audit or investigation of a
16 violation committed by a provider which is conducted pursuant
17 to this section, the agency is entitled to recover all
18 investigative, legal, and expert witness costs if the agency's
19 findings were not contested by the provider or, if contested,
20 the agency ultimately prevailed.
21 (b) The agency has the burden of documenting the
22 costs, which include salaries and employee benefits and
23 out-of-pocket expenses. The amount of costs that may be
24 recovered must be reasonable in relation to the seriousness of
25 the violation and must be set taking into consideration the
26 financial resources, earning ability, and needs of the
27 provider, who has the burden of demonstrating such factors.
28 (c) The provider may pay the costs over a period to be
29 determined by the agency if the agency determines that an
30 extreme hardship would result to the provider from immediate
31
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1 full payment. Any default in payment of costs may be
2 collected by any means authorized by law.
3 (24)(23) If the agency imposes an administrative
4 sanction pursuant to subsection (13), subsection (14), or
5 subsection (15), except paragraphs (15)(e) and (o), under this
6 section upon any provider or other person who is regulated by
7 another state entity, the agency shall notify that other
8 entity of the imposition of the sanction. Such notification
9 must include the provider's or person's name and license
10 number and the specific reasons for sanction.
11 (25)(24)(a) The agency may withhold Medicaid payments,
12 in whole or in part, to a provider upon receipt of reliable
13 evidence that the circumstances giving rise to the need for a
14 withholding of payments involve fraud, willful
15 misrepresentation, or abuse under the Medicaid program, or a
16 crime committed while rendering goods or services to Medicaid
17 recipients, pending completion of legal proceedings. If it is
18 determined that fraud, willful misrepresentation, abuse, or a
19 crime did not occur, the payments withheld must be paid to the
20 provider within 14 days after such determination with interest
21 at the rate of 10 percent a year. Any money withheld in
22 accordance with this paragraph shall be placed in a suspended
23 account, readily accessible to the agency, so that any payment
24 ultimately due the provider shall be made within 14 days.
25 (b) The agency may deny payment, or require repayment,
26 if the goods or services were furnished, supervised, or caused
27 to be furnished by a person who has been suspended or
28 terminated from the Medicaid program or Medicare program by
29 the Federal Government or any state.
30 (c)(b) Overpayments owed to the agency bear interest
31 at the rate of 10 percent per year from the date of
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1 determination of the overpayment by the agency, and payment
2 arrangements must be made at the conclusion of legal
3 proceedings. A provider who does not enter into or adhere to
4 an agreed-upon repayment schedule may be terminated by the
5 agency for nonpayment or partial payment.
6 (d)(c) The agency, upon entry of a final agency order,
7 a judgment or order of a court of competent jurisdiction, or a
8 stipulation or settlement, may collect the moneys owed by all
9 means allowable by law, including, but not limited to,
10 notifying any fiscal intermediary of Medicare benefits that
11 the state has a superior right of payment. Upon receipt of
12 such written notification, the Medicare fiscal intermediary
13 shall remit to the state the sum claimed.
14 (e) The agency may institute amnesty programs to allow
15 Medicaid providers the opportunity to voluntarily repay
16 overpayments. The agency may adopt rules to administer such
17 programs.
18 (26)(25) The agency may impose administrative
19 sanctions against a Medicaid recipient, or the agency may seek
20 any other remedy provided by law, including, but not limited
21 to, the remedies provided in s. 812.035, if the agency finds
22 that a recipient has engaged in solicitation in violation of
23 s. 409.920 or that the recipient has otherwise abused the
24 Medicaid program.
25 (27)(26) When the Agency for Health Care
26 Administration has made a probable cause determination and
27 alleged that an overpayment to a Medicaid provider has
28 occurred, the agency, after notice to the provider, may:
29 (a) Withhold, and continue to withhold during the
30 pendency of an administrative hearing pursuant to chapter 120,
31 any medical assistance reimbursement payments until such time
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1 as the overpayment is recovered, unless within 30 days after
2 receiving notice thereof the provider:
3 1. Makes repayment in full; or
4 2. Establishes a repayment plan that is satisfactory
5 to the Agency for Health Care Administration.
6 (b) Withhold, and continue to withhold during the
7 pendency of an administrative hearing pursuant to chapter 120,
8 medical assistance reimbursement payments if the terms of a
9 repayment plan are not adhered to by the provider.
10 (28)(27) Venue for all Medicaid program integrity
11 overpayment cases shall lie in Leon County, at the discretion
12 of the agency.
13 (29)(28) Notwithstanding other provisions of law, the
14 agency and the Medicaid Fraud Control Unit of the Department
15 of Legal Affairs may review a provider's Medicaid-related and
16 non-Medicaid-related records in order to determine the total
17 output of a provider's practice to reconcile quantities of
18 goods or services billed to Medicaid with against quantities
19 of goods or services used in the provider's total practice.
20 (30)(29) The agency may terminate a provider's
21 participation in the Medicaid program if the provider fails to
22 reimburse an overpayment that has been determined by final
23 order, not subject to further appeal, within 35 days after the
24 date of the final order, unless the provider and the agency
25 have entered into a repayment agreement.
26 (31)(30) If a provider requests an administrative
27 hearing pursuant to chapter 120, such hearing must be
28 conducted within 90 days following assignment of an
29 administrative law judge, absent exceptionally good cause
30 shown as determined by the administrative law judge or hearing
31 officer. Upon issuance of a final order, the outstanding
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1 balance of the amount determined to constitute the overpayment
2 shall become due. If a provider fails to make payments in
3 full, fails to enter into a satisfactory repayment plan, or
4 fails to comply with the terms of a repayment plan or
5 settlement agreement, the agency may withhold medical
6 assistance reimbursement payments until the amount due is paid
7 in full.
8 (32)(31) Duly authorized agents and employees of the
9 agency shall have the power to inspect, during normal business
10 hours, the records of any pharmacy, wholesale establishment,
11 or manufacturer, or any other place in which drugs and medical
12 supplies are manufactured, packed, packaged, made, stored,
13 sold, or kept for sale, for the purpose of verifying the
14 amount of drugs and medical supplies ordered, delivered, or
15 purchased by a provider. The agency shall provide at least 2
16 business days' prior notice of any such inspection. The notice
17 must identify the provider whose records will be inspected,
18 and the inspection shall include only records specifically
19 related to that provider.
20 (33) In accordance with federal law, Medicaid
21 recipients convicted of a crime pursuant to 42 U.S.C. 1320a-7b
22 may be limited, restricted, or suspended from Medicaid
23 eligibility for a period not to exceed 1 year, as determined
24 by the agency head or designee.
25 (34) To deter fraud and abuse in the Medicaid program,
26 the agency may limit the number of Schedule II and Schedule
27 III refill prescription claims submitted from a pharmacy
28 provider. The agency shall limit the allowable amount of
29 reimbursement of prescription refill claims for Schedule II
30 and Schedule III pharmaceuticals if the agency or the Medicaid
31 Fraud Control Unit determines that the specific prescription
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1 refill was not requested by the Medicaid recipient or
2 authorized representative for whom the refill claim is
3 submitted or was not prescribed by the recipient's medical
4 provider or physician. Any such refill request must be
5 consistent with the original prescription.
6 Section 6. Paragraph (d) of subsection (2) and
7 paragraph (b) of subsection (5) of section 409.9131, Florida
8 Statutes, are amended, and subsection (6) is added to that
9 section, to read:
10 409.9131 Special provisions relating to integrity of
11 the Medicaid program.--
12 (2) DEFINITIONS.--For purposes of this section, the
13 term:
14 (d) "Peer review" means an evaluation of the
15 professional practices of a Medicaid physician provider by a
16 peer or peers in order to assess the medical necessity,
17 appropriateness, and quality of care provided, as such care is
18 compared to that customarily furnished by the physician's
19 peers and to recognized health care standards, and, in cases
20 involving determination of medical necessity, to determine
21 whether the documentation in the physician's records is
22 adequate.
23 (5) DETERMINATIONS OF OVERPAYMENT.--In making a
24 determination of overpayment to a physician, the agency must:
25 (b) Refer all physician service claims for peer review
26 when the agency's preliminary analysis indicates that an
27 evaluation of the medical necessity, appropriateness, and
28 quality of care needs to be undertaken to determine a
29 potential overpayment, and before any formal proceedings are
30 initiated against the physician, except as required by s.
31 409.913.
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1 (6) COST REPORTS.--For any Medicaid provider
2 submitting a cost report to the agency by any method, and in
3 addition to any other certification, the following statement
4 must immediately precede the dated signature of the provider's
5 administrator or chief financial officer on such cost report:
6 "I certify that I am familiar with the laws and
7 regulations regarding the provision of health
8 care services under the Florida Medicaid
9 program, including the laws and regulations
10 relating to claims for Medicaid reimbursements
11 and payments, and that the services identified
12 in this cost report were provided in compliance
13 with such laws and regulations."
14 Section 7. Section 409.920, Florida Statutes, is
15 amended to read:
16 409.920 Medicaid provider fraud.--
17 (1) For the purposes of this section, the term:
18 (a) "Agency" means the Agency for Health Care
19 Administration.
20 (b) "Fiscal agent" means any individual, firm,
21 corporation, partnership, organization, or other legal entity
22 that has contracted with the agency to receive, process, and
23 adjudicate claims under the Medicaid program.
24 (c) "Item or service" includes:
25 1. Any particular item, device, medical supply, or
26 service claimed to have been provided to a recipient and
27 listed in an itemized claim for payment; or
28 2. In the case of a claim based on costs, any entry in
29 the cost report, books of account, or other documents
30 supporting such claim.
31
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1 (d) "Knowingly" means that the act was done
2 voluntarily and intentionally and not because of mistake or
3 accident. As used in this section, the term "knowingly" also
4 includes the word "willfully" or "willful" which, as used in
5 this section, means that an act was committed voluntarily and
6 purposely, with the specific intent to do something that the
7 law forbids, and that the act was committed with bad purpose,
8 either to disobey or disregard the law done by a person who is
9 aware or should be aware of the nature of his or her conduct
10 and that his or her conduct is substantially certain to cause
11 the intended result.
12 (2) It is unlawful to:
13 (a) Knowingly make, cause to be made, or aid and abet
14 in the making of any false statement or false representation
15 of a material fact, by commission or omission, in any claim
16 submitted to the agency or its fiscal agent for payment.
17 (b) Knowingly make, cause to be made, or aid and abet
18 in the making of a claim for items or services that are not
19 authorized to be reimbursed by the Medicaid program.
20 (c) Knowingly charge, solicit, accept, or receive
21 anything of value, other than an authorized copayment from a
22 Medicaid recipient, from any source in addition to the amount
23 legally payable for an item or service provided to a Medicaid
24 recipient under the Medicaid program or knowingly fail to
25 credit the agency or its fiscal agent for any payment received
26 from a third-party source.
27 (d) Knowingly make or in any way cause to be made any
28 false statement or false representation of a material fact, by
29 commission or omission, in any document containing items of
30 income and expense that is or may be used by the agency to
31
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1 determine a general or specific rate of payment for an item or
2 service provided by a provider.
3 (e) Knowingly solicit, offer, pay, or receive any
4 remuneration, including any kickback, bribe, or rebate,
5 directly or indirectly, overtly or covertly, in cash or in
6 kind, in return for referring an individual to a person for
7 the furnishing or arranging for the furnishing of any item or
8 service for which payment may be made, in whole or in part,
9 under the Medicaid program, or in return for obtaining,
10 purchasing, leasing, ordering, or arranging for or
11 recommending, obtaining, purchasing, leasing, or ordering any
12 goods, facility, item, or service, for which payment may be
13 made, in whole or in part, under the Medicaid program.
14 (f) Knowingly submit false or misleading information
15 or statements to the Medicaid program for the purpose of being
16 accepted as a Medicaid provider.
17 (g) Knowingly use or endeavor to use a Medicaid
18 provider's identification number or a Medicaid recipient's
19 identification number to make, cause to be made, or aid and
20 abet in the making of a claim for items or services that are
21 not authorized to be reimbursed by the Medicaid program.
22
23 A person who violates this subsection commits a felony of the
24 third degree, punishable as provided in s. 775.082, s.
25 775.083, or s. 775.084.
26 (3) The repayment of Medicaid payments wrongfully
27 obtained, or the offer or endeavor to repay Medicaid funds
28 wrongfully obtained, does not constitute a defense to, or a
29 ground for dismissal of, criminal charges brought under this
30 section.
31
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1 (4) Property "paid for" includes all property
2 furnished to or intended to be furnished to any recipient of
3 benefits under the Medicaid program, regardless of whether
4 reimbursement is ever actually made by the program.
5 (5)(4) All records in the custody of the agency or its
6 fiscal agent which relate to Medicaid provider fraud are
7 business records within the meaning of s. 90.803(6).
8 (6)(5) Proof that a claim was submitted to the agency
9 or its fiscal agent which contained a false statement or a
10 false representation of a material fact, by commission or
11 omission, unless satisfactorily explained, gives rise to an
12 inference that the person whose signature appears as the
13 provider's authorizing signature on the claim form, or whose
14 signature appears on an agency electronic claim submission
15 agreement submitted for claims made to the fiscal agent by
16 electronic means, had knowledge of the false statement or
17 false representation. This subsection applies whether the
18 signature appears on the claim form or the electronic claim
19 submission agreement by means of handwriting, typewriting,
20 facsimile signature stamp, computer impulse, initials, or
21 otherwise.
22 (7)(6) Proof of submission to the agency or its fiscal
23 agent of a document containing items of income and expense,
24 which document is used or that may be used by the agency or
25 its fiscal agent to determine a general or specific rate of
26 payment and which document contains a false statement or a
27 false representation of a material fact, by commission or
28 omission, unless satisfactorily explained, gives rise to the
29 inference that the person who signed the certification of the
30 document had knowledge of the false statement or
31 representation. This subsection applies whether the signature
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1 appears on the document by means of handwriting, typewriting,
2 facsimile signature stamp, electronic transmission, initials,
3 or otherwise.
4 (8)(7) The Attorney General shall conduct a statewide
5 program of Medicaid fraud control. To accomplish this purpose,
6 the Attorney General shall:
7 (a) Investigate the possible criminal violation of any
8 applicable state law pertaining to fraud in the administration
9 of the Medicaid program, in the provision of medical
10 assistance, or in the activities of providers of health care
11 under the Medicaid program.
12 (b) Investigate the alleged abuse or neglect of
13 patients in health care facilities receiving payments under
14 the Medicaid program, in coordination with the agency.
15 (c) Investigate the alleged misappropriation of
16 patients' private funds in health care facilities receiving
17 payments under the Medicaid program.
18 (d) Refer to the Office of Statewide Prosecution or
19 the appropriate state attorney all violations indicating a
20 substantial potential for criminal prosecution.
21 (e) Refer to the agency all suspected abusive
22 activities not of a criminal or fraudulent nature.
23 (f) Safeguard the privacy rights of all individuals
24 and provide safeguards to prevent the use of patient medical
25 records for any reason beyond the scope of a specific
26 investigation for fraud or abuse, or both, without the
27 patient's written consent.
28 (g) Publicize to state employees and the public the
29 ability of persons to bring suit under the provisions of the
30 Florida False Claims Act and the potential for the persons
31
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1 bringing a civil action under the Florida False Claims Act to
2 obtain a monetary award.
3 (9)(8) In carrying out the duties and responsibilities
4 under this section, the Attorney General may:
5 (a) Enter upon the premises of any health care
6 provider, excluding a physician, participating in the Medicaid
7 program to examine all accounts and records that may, in any
8 manner, be relevant in determining the existence of fraud in
9 the Medicaid program, to investigate alleged abuse or neglect
10 of patients, or to investigate alleged misappropriation of
11 patients' private funds. A participating physician is required
12 to make available any accounts or records that may, in any
13 manner, be relevant in determining the existence of fraud in
14 the Medicaid program, to investigate alleged abuse or neglect
15 of patients, or to investigate alleged misappropriation of
16 patients' private funds. Subject only to applicable federal
17 statutes, but notwithstanding any other provision of law, the
18 accounts or records of a non-Medicaid patient may be reviewed
19 by the Medicaid Fraud Control Unit without the patient's
20 consent, pursuant to an investigation of suspected Medicaid
21 fraud, in order to determine consistency in the quality and
22 appropriateness of treatment provided to Medicaid recipients
23 as compared to non-Medicaid recipients not be reviewed by, or
24 turned over to, the Attorney General without the patient's
25 written consent.
26 (b) Subpoena witnesses or materials, including medical
27 records relating to Medicaid recipients, within or outside the
28 state and, through any duly designated employee, administer
29 oaths and affirmations and collect evidence for possible use
30 in either civil or criminal judicial proceedings.
31
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1 (c) Request and receive the assistance of any state
2 attorney or law enforcement agency in the investigation and
3 prosecution of any violation of this section.
4 (d) Seek any civil remedy provided by law, including,
5 but not limited to, the remedies provided in ss. 68.081-68.092
6 and 812.035 and this chapter.
7 (e) Refer to the agency for collection each instance
8 of overpayment to a provider of health care under the Medicaid
9 program which is discovered during the course of an
10 investigation.
11 Section 8. Section 409.9201, Florida Statutes, is
12 created to read:
13 409.9201 Medicaid fraud.--
14 (1) As used in this section, the term:
15 (a) "Legend drug" means any drug, including, but not
16 limited to, finished dosage forms or active ingredients that
17 are subject to, defined by, or described by s. 503(b) of the
18 Federal Food, Drug, and Cosmetic Act or by s. 465.003(8), s.
19 499.007(12), or s. 499.0122(1)(b) or (c).
20 (b) "Value" means the amount billed to the Medicaid
21 program for the property dispensed or the market value of a
22 legend drug or goods or services at the time and place of the
23 offense. If the market value cannot be determined, the term
24 means the replacement cost of the legend drug or goods or
25 services within a reasonable time after the offense.
26 (2) Any person who knowingly sells, who knowingly
27 attempts or conspires to sell, or who knowingly causes any
28 other person to sell or attempt or conspire to sell a legend
29 drug that was paid for by the Medicaid program commits a
30 felony.
31
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1 (a) If the value of the legend drug involved is less
2 than $20,000, the crime is a felony of the third degree,
3 punishable as provided in s. 775.082, s. 775.083, or s.
4 775.084.
5 (b) If the value of the legend drug involved is
6 $20,000 or more but less than $100,000, the crime is a felony
7 of the second degree, punishable as provided in s. 775.082, s.
8 775.083, or s. 775.084.
9 (c) If the value of the legend drug involved is
10 $100,000 or more, the crime is a felony of the first degree,
11 punishable as provided in s. 775.082, s. 775.083, or s.
12 775.084.
13 (3) Any person who knowingly purchases, or who
14 knowingly attempts or conspires to purchase, a legend drug
15 that was paid for by the Medicaid program and intended for use
16 by another person commits a felony.
17 (a) If the value of the legend drug is less than
18 $20,000, the crime is a felony of the third degree, punishable
19 as provided in s. 775.082, s. 775.083, or s. 775.084.
20 (b) If the value of the legend drug is $20,000 or more
21 but less than $100,000, the crime is a felony of the second
22 degree, punishable as provided in s. 775.082, s. 775.083, or
23 s. 775.084.
24 (c) If the value of the legend drug is $100,000 or
25 more, the crime is a felony of the first degree, punishable as
26 provided in s. 775.082, s. 775.083, or s. 775.084.
27 (4) Any person who knowingly makes or knowingly causes
28 to be made, or who attempts or conspires to make, any false
29 statement or representation to any person for the purpose of
30 obtaining goods or services from the Medicaid program commits
31 a felony.
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1 (a) If the value of the goods or services is less than
2 $20,000, the crime is a felony of the third degree, punishable
3 as provided in s. 775.082, s. 775.083, or s. 775.084.
4 (b) If the value of the goods or services is $20,000
5 or more but less than $100,000, the crime is a felony of the
6 second degree, punishable as provided in s. 775.082, s.
7 775.083, or s. 775.084.
8 (c) If the value of the goods or services involved is
9 $100,000 or more, the crime is a felony of the first degree,
10 punishable as provided in s. 775.082, s. 775.083, or s.
11 775.084.
12
13 The value of individual items of the legend drugs or goods or
14 services involved in distinct transactions committed during a
15 single scheme or course of conduct, whether involving a single
16 person or several persons, may be aggregated when determining
17 the punishment for the offense.
18 Section 9. Paragraph (ff) is added to subsection (1)
19 of section 456.072, Florida Statutes, to read:
20 456.072 Grounds for discipline; penalties;
21 enforcement.--
22 (1) The following acts shall constitute grounds for
23 which the disciplinary actions specified in subsection (2) may
24 be taken:
25 (ff) Engaging in a pattern of practice when
26 prescribing medicinal drugs or controlled substances which
27 demonstrates a lack of reasonable skill or safety to patients,
28 a violation of any provision of this chapter, a violation of
29 the applicable practice act, or a violation of any rules
30 adopted pursuant to this chapter or the applicable practice
31 act of the prescribing practitioner. Notwithstanding s.
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1 456.073(13), the department may initiate an investigation and
2 establish such a pattern from billing records, data, or any
3 other information obtained by the department.
4 Section 10. Subsection (1) of section 465.188, Florida
5 Statutes, is amended to read:
6 465.188 Medicaid audits of pharmacies.--
7 (1) Notwithstanding any other law, when an audit of
8 the Medicaid-related records of a pharmacy licensed under
9 chapter 465 is conducted, such audit must be conducted as
10 provided in this section.
11 (a) The agency conducting the audit must give the
12 pharmacist at least 1 week's prior notice of the audit.
13 (a)(b) An audit must be conducted by a pharmacist
14 licensed in this state.
15 (b)(c) Any clerical or recordkeeping error, such as a
16 typographical error, scrivener's error, or computer error
17 regarding a document or record required under the Medicaid
18 program does not constitute a willful violation and is not
19 subject to criminal penalties without proof of intent to
20 commit fraud.
21 (c)(d) A pharmacist may use the physician's record or
22 other order for drugs or medicinal supplies written or
23 transmitted by any means of communication for purposes of
24 validating the pharmacy record with respect to orders or
25 refills of a legend or narcotic drug.
26 (d)(e) A finding of an overpayment or underpayment
27 must be based on the actual overpayment or underpayment and
28 may not be a projection based on the number of patients served
29 having a similar diagnosis or on the number of similar orders
30 or refills for similar drugs.
31
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1 (e)(f) Each pharmacy shall be audited under the same
2 standards and parameters.
3 (f)(g) A pharmacist must be allowed at least 10 days
4 in which to produce documentation to address any discrepancy
5 found during an audit.
6 (g)(h) The period covered by an audit may not exceed 1
7 calendar year.
8 (h)(i) An audit may not be scheduled during the first
9 5 days of any month due to the high volume of prescriptions
10 filled during that time.
11 (i)(j) The audit report must be delivered to the
12 pharmacist within 90 days after conclusion of the audit. A
13 final audit report shall be delivered to the pharmacist within
14 6 months after receipt of the preliminary audit report or
15 final appeal, as provided for in subsection (2), whichever is
16 later.
17 (j) The audit criteria set forth in this section
18 applies only to audits of claims submitted for payment
19 subsequent to July 11, 2003.
20 Section 11. Section 812.0191, Florida Statutes, is
21 created to read:
22 812.0191 Dealing in property paid for in whole or in
23 part by the Medicaid program.--
24 (1) As used in this section, the term:
25 (a) "Property paid for in whole or in part by the
26 Medicaid program" means any devices, goods, services, drugs,
27 or any other property furnished or intended to be furnished to
28 a recipient of benefits under the Medicaid program.
29 (b) "Value" means the amount billed to Medicaid for
30 the property dispensed or the market value of the devices,
31 goods, services, or drugs at the time and place of the
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1 offense. If the market value cannot be determined, the term
2 means the replacement cost of the devices, goods, services, or
3 drugs within a reasonable time after the offense.
4 (2) Any person who traffics in, or endeavors to
5 traffic in, property that he or she knows or should have known
6 was paid for in whole or in part by the Medicaid program
7 commits a felony.
8 (a) If the value of the property involved is less than
9 $20,000, the crime is a felony of the third degree, punishable
10 as provided in s. 775.082, s. 775.083, or s. 775.084.
11 (b) If the value of the property involved is $20,000
12 or more but less than $100,000, the crime is a felony of the
13 second degree, punishable as provided in s. 775.082, s.
14 775.083, or s. 775.084.
15 (c) If the value of the property involved is $100,000
16 or more, the crime is a felony of the first degree, punishable
17 as provided in s. 775.082, s. 775.083, or s. 775.084.
18
19 The value of individual items of the devices, goods, services,
20 drugs, or other property involved in distinct transactions
21 committed during a single scheme or course of conduct, whether
22 involving a single person or several persons, may be
23 aggregated when determining the punishment for the offense.
24 (3) Any person who knowingly initiates, organizes,
25 plans, finances, directs, manages, or supervises the obtaining
26 of property paid for in whole or in part by the Medicaid
27 program and who traffics in, or endeavors to traffic in, such
28 property commits a felony of the first degree, punishable as
29 provided in s. 775.082, s. 775.083, or s. 775.084.
30 Section 12. Paragraph (a) of subsection (1) of section
31 895.02, Florida Statutes, is amended to read:
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1 895.02 Definitions.--As used in ss. 895.01-895.08, the
2 term:
3 (1) "Racketeering activity" means to commit, to
4 attempt to commit, to conspire to commit, or to solicit,
5 coerce, or intimidate another person to commit:
6 (a) Any crime which is chargeable by indictment or
7 information under the following provisions of the Florida
8 Statutes:
9 1. Section 210.18, relating to evasion of payment of
10 cigarette taxes.
11 2. Section 403.727(3)(b), relating to environmental
12 control.
13 3. Section 414.39, relating to public assistance
14 fraud.
15 4. Section 409.920, relating to Medicaid provider
16 fraud and s. 409.9201, relating to Medicaid recipient fraud.
17 5. Section 440.105 or s. 440.106, relating to workers'
18 compensation.
19 6. Sections 499.0051, 499.0052, 499.0053, 499.0054,
20 and 499.0691, relating to crimes involving contraband and
21 adulterated drugs.
22 7. Part IV of chapter 501, relating to telemarketing.
23 8. Chapter 517, relating to sale of securities and
24 investor protection.
25 9. Section 550.235, s. 550.3551, or s. 550.3605,
26 relating to dogracing and horseracing.
27 10. Chapter 550, relating to jai alai frontons.
28 11. Chapter 552, relating to the manufacture,
29 distribution, and use of explosives.
30 12. Chapter 560, relating to money transmitters, if
31 the violation is punishable as a felony.
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1 13. Chapter 562, relating to beverage law enforcement.
2 14. Section 624.401, relating to transacting insurance
3 without a certificate of authority, s. 624.437(4)(c)1.,
4 relating to operating an unauthorized multiple-employer
5 welfare arrangement, or s. 626.902(1)(b), relating to
6 representing or aiding an unauthorized insurer.
7 15. Section 655.50, relating to reports of currency
8 transactions, when such violation is punishable as a felony.
9 16. Chapter 687, relating to interest and usurious
10 practices.
11 17. Section 721.08, s. 721.09, or s. 721.13, relating
12 to real estate timeshare plans.
13 18. Chapter 782, relating to homicide.
14 19. Chapter 784, relating to assault and battery.
15 20. Chapter 787, relating to kidnapping.
16 21. Chapter 790, relating to weapons and firearms.
17 22. Section 796.03, s. 796.04, s. 796.05, or s.
18 796.07, relating to prostitution.
19 23. Chapter 806, relating to arson.
20 24. Section 810.02(2)(c), relating to specified
21 burglary of a dwelling or structure.
22 25. Chapter 812, relating to theft, robbery, and
23 related crimes.
24 26. Chapter 815, relating to computer-related crimes.
25 27. Chapter 817, relating to fraudulent practices,
26 false pretenses, fraud generally, and credit card crimes.
27 28. Chapter 825, relating to abuse, neglect, or
28 exploitation of an elderly person or disabled adult.
29 29. Section 827.071, relating to commercial sexual
30 exploitation of children.
31
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1 30. Chapter 831, relating to forgery and
2 counterfeiting.
3 31. Chapter 832, relating to issuance of worthless
4 checks and drafts.
5 32. Section 836.05, relating to extortion.
6 33. Chapter 837, relating to perjury.
7 34. Chapter 838, relating to bribery and misuse of
8 public office.
9 35. Chapter 843, relating to obstruction of justice.
10 36. Section 847.011, s. 847.012, s. 847.013, s.
11 847.06, or s. 847.07, relating to obscene literature and
12 profanity.
13 37. Section 849.09, s. 849.14, s. 849.15, s. 849.23,
14 or s. 849.25, relating to gambling.
15 38. Chapter 874, relating to criminal street gangs.
16 39. Chapter 893, relating to drug abuse prevention and
17 control.
18 40. Chapter 896, relating to offenses related to
19 financial transactions.
20 41. Sections 914.22 and 914.23, relating to tampering
21 with a witness, victim, or informant, and retaliation against
22 a witness, victim, or informant.
23 42. Sections 918.12 and 918.13, relating to tampering
24 with jurors and evidence.
25 Section 13. Section 905.34, Florida Statutes, is
26 amended to read:
27 905.34 Powers and duties; law applicable.--The
28 jurisdiction of a statewide grand jury impaneled under this
29 chapter shall extend throughout the state. The subject matter
30 jurisdiction of the statewide grand jury shall be limited to
31 the offenses of:
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1 (1) Bribery, burglary, carjacking, home-invasion
2 robbery, criminal usury, extortion, gambling, kidnapping,
3 larceny, murder, prostitution, perjury, and robbery;
4 (2) Crimes involving narcotic or other dangerous
5 drugs;
6 (3) Any violation of the provisions of the Florida
7 RICO (Racketeer Influenced and Corrupt Organization) Act,
8 including any offense listed in the definition of racketeering
9 activity in s. 895.02(1)(a), providing such listed offense is
10 investigated in connection with a violation of s. 895.03 and
11 is charged in a separate count of an information or indictment
12 containing a count charging a violation of s. 895.03, the
13 prosecution of which listed offense may continue independently
14 if the prosecution of the violation of s. 895.03 is terminated
15 for any reason;
16 (4) Any violation of the provisions of the Florida
17 Anti-Fencing Act;
18 (5) Any violation of the provisions of the Florida
19 Antitrust Act of 1980, as amended;
20 (6) Any violation of the provisions of chapter 815;
21 (7) Any crime involving, or resulting in, fraud or
22 deceit upon any person;
23 (8) Any violation of s. 847.0135, s. 847.0137, or s.
24 847.0138 relating to computer pornography and child
25 exploitation prevention, or any offense related to a violation
26 of s. 847.0135, s. 847.0137, or s. 847.0138; or
27 (9) Any criminal violation of part I of chapter 499;
28 or
29 (10) Any criminal violation of s. 409.920 or s.
30 409.9201;
31
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1 or any attempt, solicitation, or conspiracy to commit any
2 violation of the crimes specifically enumerated above, when
3 any such offense is occurring, or has occurred, in two or more
4 judicial circuits as part of a related transaction or when any
5 such offense is connected with an organized criminal
6 conspiracy affecting two or more judicial circuits. The
7 statewide grand jury may return indictments and presentments
8 irrespective of the county or judicial circuit where the
9 offense is committed or triable. If an indictment is
10 returned, it shall be certified and transferred for trial to
11 the county where the offense was committed. The powers and
12 duties of, and law applicable to, county grand juries shall
13 apply to a statewide grand jury except when such powers,
14 duties, and law are inconsistent with the provisions of ss.
15 905.31-905.40.
16 Section 14. Paragraph (a) of subsection (2) of section
17 932.701, Florida Statutes, is amended to read:
18 932.701 Short title; definitions.--
19 (2) As used in the Florida Contraband Forfeiture Act:
20 (a) "Contraband article" means:
21 1. Any controlled substance as defined in chapter 893
22 or any substance, device, paraphernalia, or currency or other
23 means of exchange that was used, was attempted to be used, or
24 was intended to be used in violation of any provision of
25 chapter 893, if the totality of the facts presented by the
26 state is clearly sufficient to meet the state's burden of
27 establishing probable cause to believe that a nexus exists
28 between the article seized and the narcotics activity, whether
29 or not the use of the contraband article can be traced to a
30 specific narcotics transaction.
31
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1 2. Any gambling paraphernalia, lottery tickets, money,
2 currency, or other means of exchange which was used, was
3 attempted, or intended to be used in violation of the gambling
4 laws of the state.
5 3. Any equipment, liquid or solid, which was being
6 used, is being used, was attempted to be used, or intended to
7 be used in violation of the beverage or tobacco laws of the
8 state.
9 4. Any motor fuel upon which the motor fuel tax has
10 not been paid as required by law.
11 5. Any personal property, including, but not limited
12 to, any vessel, aircraft, item, object, tool, substance,
13 device, weapon, machine, vehicle of any kind, money,
14 securities, books, records, research, negotiable instruments,
15 or currency, which was used or was attempted to be used as an
16 instrumentality in the commission of, or in aiding or abetting
17 in the commission of, any felony, whether or not comprising an
18 element of the felony, or which is acquired by proceeds
19 obtained as a result of a violation of the Florida Contraband
20 Forfeiture Act.
21 6. Any real property, including any right, title,
22 leasehold, or other interest in the whole of any lot or tract
23 of land, which was used, is being used, or was attempted to be
24 used as an instrumentality in the commission of, or in aiding
25 or abetting in the commission of, any felony, or which is
26 acquired by proceeds obtained as a result of a violation of
27 the Florida Contraband Forfeiture Act.
28 7. Any personal property, including, but not limited
29 to, equipment, money, securities, books, records, research,
30 negotiable instruments, currency, or any vessel, aircraft,
31 item, object, tool, substance, device, weapon, machine, or
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1 vehicle of any kind in the possession of or belonging to any
2 person who takes aquaculture products in violation of s.
3 812.014(2)(c).
4 8. Any motor vehicle offered for sale in violation of
5 s. 320.28.
6 9. Any motor vehicle used during the course of
7 committing an offense in violation of s. 322.34(9)(a).
8 10. Any real property, including any right, title,
9 leasehold, or other interest in the whole of any lot or tract
10 of land, which is acquired by proceeds obtained as a result of
11 Medicaid provider fraud under s. 409.920; any personal
12 property, including, but not limited to, equipment, money,
13 securities, books, records, research, negotiable instruments,
14 or currency; or any vessel, aircraft, item, object, tool,
15 substance, device, weapon, machine, or vehicle of any kind in
16 the possession of or belonging to any person which is acquired
17 by proceeds obtained as a result of Medicaid provider fraud
18 under s. 409.920.
19 Section 15. Paragraph (l) is added to subsection (5)
20 of section 932.7055, Florida Statutes, to read:
21 932.7055 Disposition of liens and forfeited
22 property.--
23 (5) If the seizing agency is a state agency, all
24 remaining proceeds shall be deposited into the General Revenue
25 Fund. However, if the seizing agency is:
26 (l) The Medicaid Fraud Control Unit of the Department
27 of Legal Affairs, the state share of the proceeds accrued
28 pursuant to the provisions of the Florida Contraband
29 Forfeiture Act shall be deposited into the Grants and
30 Donations Trust Fund as provided in s. 409.916, as applicable.
31 Section 16. This act shall take effect July 1, 2004.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1064
3
4 The committee substitute makes the following changes to SB
1064:
5
Authorizes the Office of Statewide Prosecution to investigate
6 and prosecute any criminal violation of s. 409.920 or s.
409.9201, F.S., and provides that the Statewide Grand Jury's
7 jurisdiction includes any criminal violation of s. 409.920 or
s. 409.9201, F.S.
8
Includes MFCU in the AHCA local coordinating workgroups for
9 identifying unlicensed assisted living facilities and gives
MFCU the authority to enter and inspect facilities licensed
10 under part III of ch. 400, F.S.
11 Gives AHCA the authority to require a confirmation or second
physician's opinion of the correct diagnosis before
12 authorizing payment for medical treatment.
13 Requires AHCA and the Drug Utilization Review Board to consult
with the Department of Health under the practice pattern
14 identification program.
15 Specifies that AHCA can conduct or contract for prepayment
review of provider claims to ensure that billing by a provider
16 is in accordance with applicable Medicaid rules, regulations,
handbooks, and policies and in accordance with all state and
17 federal laws, and to ensure that appropriate care is rendered
to Medicaid recipients.
18
Clarifies that suspension or termination from the Medicaid
19 program precludes participation in Medicaid during that
period, which includes any action that results in a claim for
20 payment to the Medicaid program as a result of furnishing,
supervising a person who is furnishing, or causing a person to
21 furnish goods or services.
22 Authorizes AHCA to limit, restrict, or suspend Medicaid
eligibility for a period of up to one year for those
23 recipients convicted of a fraudulent act under or against a
federal health care program.
24
Further specifies a provider's obligation with regard to
25 submitting claims to the Medicaid progrqam by providing that
AHCA shall not reimburse any person or entity for any
26 prescription for medications, medical supplies, or medical
services if the prescription was written by a physician or
27 other prescribing practitioner who is not enrolled in the
Medicaid program, and provides certain exemptions.
28
Authorizes AHCA to limit the number of Schedule II and
29 Schedule III refill prescription claims submitted from
pharmacy providers.
30
Requires AHCA to limit the allowable amount of reimbursement
31 of prescription refill claims for Schedule II and Schedule III
pharmaceuticals if AHCA or MFCU determines that the specific
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1 prescription refill was not requested by the Medicaid
recipient or authorized representative for whom the refill
2 claim is submitted, or was not prescribed by the recipient's
medical provider or physician.
3
Redefines the term "knowingly" as an act done voluntarily and
4 intentionally and not because of mistake or accident.
"Knowingly" also includes the word "willfully" or "willful".
5 Makes it unlawful to knowingly use or endeavor to use a
Medicaid provider's or recipient's identification number or
6 cause to be made, or aid and abet in the making of a claim for
items or services that are not authorized to be reimbursed
7 under the Medicaid program.
8 Authorizes AHCA and MFCU to review a provider's
non-Medicaid-related records, without the patient's consent,
9 pursuant to an investigation of suspected Medicaid fraud in or
to determine consistency in the quality and appropriateness of
10 treatment provided to Medicaid recipients as compared to
non-Medicaid recipients.
11
Provides an additional ground under which a health care
12 practitioner who prescribes medicinal drugs or controlled
substances may be subject to discipline by the Department of
13 Health or the appropriate board having jurisdiction over the
health care practitioner.
14
Deletes the requirement that AHCA give pharmacists at least 1
15 week's notice prior to a pharmacy audit, specifying an
effective date for the audit criteria in the section.
16
Creates new felony violations for various Medicaid fraud
17 activities.
18 Expands the definition of "racketeering activity" to include
crimes committed under s. 409.9201, F.S., relating to Medicaid
19 recipient fraud. Expands the definition of "contraband
article." Requires that proceeds collected under the
20 Contraband Forfeiture Act be deposited in AHCA's Grants and
Donations Trust Fund.
21
22
23
24
25
26
27
28
29
30
31
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