Senate Bill sb2816
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    Florida Senate - 2004                                  SB 2816
    By Senator Alexander
    17-632-04
  1                      A bill to be entitled
  2         An act relating to independent diagnostic
  3         testing facilities; creating part XIV of ch.
  4         400, F.S., entitled the Independent Diagnostic
  5         Testing Facility Act; providing for definitions
  6         and exclusions; providing for the licensure,
  7         inspection, and regulation of independent
  8         diagnostic testing facilities by the Agency for
  9         Health Care Administration; requiring licensure
10         of facilities and background screening of
11         applicants for licensure; providing for
12         facility inspections; providing rulemaking
13         authority; providing licensure fees; providing
14         fines and penalties for operating an unlicensed
15         facility; providing for facility
16         responsibilities with respect to personnel and
17         operations; providing accreditation
18         requirements; providing for injunctive
19         proceedings and agency actions; providing
20         administrative penalties; providing an
21         effective date.
22  
23  Be It Enacted by the Legislature of the State of Florida:
24  
25         Section 1.  Part XIV of chapter 400, consisting of
26  sections 400.996, 400.9961, 400.9962, 400.9963, 400.9964,
27  400.9965, 400.9966, 400.9967, 400.9968, 400.9969, and 400.997,
28  Florida Statutes, is created to read:
29         400.996  Short title; legislative findings.--
30         (1)  This part, consisting of ss. 400.996-400.997, may
31  be cited as the "Independent Diagnostic Testing Facility Act."
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 1         (2)  The Legislature finds that the regulation of
 2  independent diagnostic testing facilities must be improved to
 3  prevent significant cost and harm to consumers. The purpose of
 4  this part is to provide for the licensure of independent
 5  diagnostic testing facilities and enforcement of basic
 6  standards by the Agency for Health Care Administration.
 7         400.9961  Definitions.--As used in this part, the term:
 8         (1)  "Agency" means the Agency for Health Care
 9  Administration.
10         (2)  "Applicant" means an individual owner,
11  corporation, partnership, firm, business, association, or
12  other entity that owns or controls, directly or indirectly, 5
13  percent or more of an interest in an independent diagnostic
14  testing facility and that applies for a facility license, or
15  the general partners, but not the limited partners, in a
16  limited liability partnership.
17         (3)  "Independent diagnostic testing facility" or
18  "facility" means an entity that performs the technical
19  component of magnetic resonance imaging, static radiographs
20  (static X-ray), computer tomography, or position emission
21  tomography in a fixed facility, and:
22         (a)  Is accredited by the Joint Commission on
23  Accreditation of Healthcare Organizations or the American
24  College of Radiology within 1 year after licensure;
25         (b)  Does not accept patient referrals prohibited by s.
26  456.053(5);
27         (c)  Does not provide therapy or treatment services to
28  patients who are provided diagnostic imaging services;
29         (d)  Does not have an investor as defined in s.
30  456.053(3)(l);
31  
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 1         (e)  Does not employ, contract with, or have as an
 2  investor:
 3         1.  A person or entity that is directly or indirectly
 4  an investor in a clinic as defined in s. 400.9905(3); or
 5         2.  A person or entity that directly or indirectly
 6  provides services to a clinic if the services include the
 7  referral as defined by s. 456.053(3)(0) of patients to any
 8  provider of diagnostic imaging services; and
 9         (f)  Is not a clinic as defined in s. 400.9905(3).
10  
11  The facility may provide the professional components of the
12  imaging services through an employee or independent
13  contractor.
14         400.9962  License requirements; background screenings;
15  prohibitions.--
16         (1)  Each facility must be licensed and shall at all
17  times maintain a valid license with the agency. Each facility
18  location shall be licensed separately regardless of whether
19  the facility is operated under the same business name or
20  management as another facility.
21         (2)  The initial facility license application shall be
22  filed with the agency by all facilities on or before March 1,
23  2005. A facility license must be renewed biennially.
24         (3)  An applicant that submits an application on or
25  before March 1, 2005, which meets all requirements for initial
26  licensure as specified in this section shall receive a
27  temporary license until the completion of an initial
28  inspection verifying that the applicant meets all requirements
29  in rules authorized by s. 400.9965. However, a facility
30  engaged in magnetic resonance imaging services may not receive
31  a temporary license unless it presents evidence satisfactory
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 1  to the agency that the facility is making a good faith effort
 2  and substantial progress in seeking accreditation required
 3  under s. 400.9967.
 4         (4)  An application for an initial facility license or
 5  for renewal of an existing license shall be notarized on a
 6  form furnished by the agency and must be accompanied by the
 7  appropriate license fee as provided in s. 400.9965. The agency
 8  shall take final action on an initial license application
 9  within 60 days after receipt of all required documentation.
10         (5)  The application must contain information that
11  includes, but need not be limited to, information pertaining
12  to the name, residence and business address, phone number,
13  social security number, and license number of the facility
14  director, each licensed medical provider employed or under
15  contract with the facility, and each person who, directly or
16  indirectly, owns or controls 5 percent or more of an interest
17  in the facility, the general partners, in a limited liability
18  partnership.
19         (6)  The applicant must file with the application
20  satisfactory proof that the facility is in compliance with
21  this part and applicable rules, including:
22         (a)  A listing of services to be provided directly by
23  the applicant or through contractual arrangements with
24  existing providers;
25         (b)  The number and discipline of each professional
26  staff member to be employed; and
27         (c)  Proof of financial ability to operate. An
28  applicant must demonstrate financial ability to operate a
29  facility by submitting a balance sheet and an income and
30  expense statement for the first year of operation which
31  provide evidence of the applicant's having sufficient assets,
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 1  credit, and projected revenues to cover liabilities and
 2  expenses. The applicant has demonstrated financial ability to
 3  operate if the applicant's assets, credit, and projected
 4  revenues meet or exceed projected liabilities and expenses.
 5  All documents required under this subsection must be prepared
 6  in accordance with generally accepted accounting principles,
 7  may be in a compilation form, and the financial statement must
 8  be signed by a certified public accountant. As an alternative
 9  to submitting a balance sheet and an income and expense
10  statement for the first year of operation, the applicant may
11  file a surety bond of at least $500,000, payable to the agency
12  which guarantees that the facility will act in full conformity
13  with all legal requirements for operating a facility. The
14  agency may adopt rules to specify related requirements for the
15  surety bond.
16         (7)  Each applicant for licensure shall comply with the
17  requirements of this subsection.
18         (a)  As used in this subsection, the term "applicant"
19  means individuals owning or controlling, directly or
20  indirectly, 5 percent or more of an interest in a facility;
21  the facility director, or a similarly titled person who is
22  responsible for the day-to-day operation of the licensed
23  facility; the financial officer or similarly titled individual
24  who is responsible for the financial operation of the
25  facility; and the licensed medical providers at the facility.
26         (b)  Upon receipt of a completed, signed, and dated
27  application, the agency shall require background screening of
28  the applicant, in accordance with the level 2 standards for
29  screening set forth in chapter 435. Proof of compliance with
30  the level 2 background screening requirements of chapter 435
31  which has been submitted within the previous 5 years in
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 1  compliance with any other health care licensure requirements
 2  of this state is acceptable in fulfillment of this paragraph.
 3         (c)  Each applicant must submit to the agency, with the
 4  application, a description and explanation of any exclusions,
 5  permanent suspensions, or terminations of an applicant from
 6  the Medicare or Medicaid programs. Proof of compliance with
 7  the requirements for disclosure of ownership and control
 8  interest under the Medicaid or Medicare programs may be
 9  accepted in lieu of this submission. The description and
10  explanation may indicate whether the exclusions, suspensions,
11  or terminations were voluntary or involuntary on the part of
12  the applicant.
13         (d)  A license may not be granted to a facility if the
14  applicant has been found guilty of, regardless of
15  adjudication, or has entered a plea of nolo contendere or
16  guilty to, any offense prohibited under the level 2 standards
17  for screening set forth in chapter 435, or a violation of
18  insurance fraud under s. 817.234, within the past 5 years. If
19  the applicant has been convicted of an offense prohibited
20  under the level 2 standards or insurance fraud in any
21  jurisdiction, the applicant must show that his or her civil
22  rights have been restored prior to submitting an application.
23         (e)  The agency may deny or revoke licensure if the
24  applicant has falsely represented any material fact or omitted
25  any material fact from the application required by this part.
26         (8)  Requested information omitted from an application
27  for licensure, license renewal, or transfer of ownership must
28  be filed with the agency within 21 days after receipt of the
29  agency's request for omitted information, or the application
30  shall be deemed incomplete and shall be withdrawn from further
31  consideration.
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 1         (9)  The failure to timely file a renewal application
 2  shall result in a late fee charged to the facility in an
 3  amount equal to 50 percent of the current license fee.
 4         400.9963  Facility inspections; emergency suspension;
 5  costs.--
 6         (1)  Any authorized officer or employee of the agency
 7  shall make inspections of the facility as part of the initial
 8  license application or renewal application. The application
 9  for a facility license issued under this part or for a renewal
10  license constitutes permission for an appropriate agency
11  inspection to verify the information submitted on or in
12  connection with the application or renewal.
13         (2)  An authorized officer or employee of the agency
14  may make unannounced inspections of facilities licensed under
15  this part as necessary to determine that the facility is in
16  compliance with this part and with applicable rules. A
17  licensed facility shall allow full and complete access to the
18  premises and to billing records or information to any
19  representative of the agency who makes an inspection to
20  determine compliance with this part and with applicable rules.
21         (3)  Failure by a facility licensed under this part to
22  allow full and complete access to the premises and to billing
23  records or information to any representative of the agency who
24  makes a request to inspect the facility to determine
25  compliance with this part constitutes a ground for emergency
26  suspension of the license by the agency under s. 120.60(6).
27         (4)  In addition to any administrative fines imposed,
28  the agency may assess a fee equal to the cost of conducting a
29  complaint investigation.
30         400.9964  License renewal; transfer of ownership;
31  provisional license.--
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 1         (1)  An application for license renewal must contain
 2  information as required by the agency.
 3         (2)  Ninety days before the expiration date, an
 4  application for renewal must be submitted to the agency.
 5         (3)  The facility must file with the renewal
 6  application satisfactory proof that it is in compliance with
 7  this part and applicable rules. If there is evidence of
 8  financial instability, the facility must submit satisfactory
 9  proof of its financial ability to comply with the requirements
10  of this part.
11         (4)  When transferring the ownership of a facility, the
12  transferee must submit an application for a license at least
13  60 days before the effective date of the transfer. An
14  application for change of ownership of a facility is required
15  only when 45 percent or more of the ownership, voting shares,
16  or controlling interest of a facility is transferred or
17  assigned, including the final transfer or assignment of
18  multiple transfers or assignments over a 2-year period which
19  cumulatively total 45 percent or greater.
20         (5)  The license may not be sold, leased, assigned, or
21  otherwise transferred, voluntarily or involuntarily, and is
22  valid only for the facility owners and location for which
23  originally issued.
24         (6)  A facility against whom a revocation or suspension
25  proceeding is pending at the time of license renewal may be
26  issued a provisional license effective until final disposition
27  by the agency of the proceedings. If judicial relief is sought
28  from the final disposition, the agency that has jurisdiction
29  may issue a temporary permit for the duration of the judicial
30  proceeding.
31         400.9965  Rulemaking authority; license fees.--
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 1         (1)  The agency shall adopt rules necessary to
 2  administer the facility administration, regulation, and
 3  licensure program, including rules establishing the specific
 4  licensure requirements, procedures, forms, and fees. It shall
 5  adopt rules establishing a procedure for the biennial renewal
 6  of licenses. The agency may issue initial licenses for less
 7  than the full 2-year period by charging a prorated licensure
 8  fee and specifying a different renewal date than would
 9  otherwise be required for biennial licensure. The rules shall
10  specify the expiration dates of licenses, the process of
11  tracking compliance with financial responsibility
12  requirements, and any other conditions of renewal required by
13  law or rule.
14         (2)  License application and renewal fees must be
15  reasonably calculated by the agency to cover its costs in
16  carrying out its responsibilities under this part, including
17  the cost of licensure, inspection, and regulation of
18  facilities. The total fees collected may not exceed the cost
19  of administering and enforcing compliance with this part.
20  Facility licensure fees are nonrefundable and may not exceed
21  $2,000. The agency shall adjust the license fee annually by
22  not more than the change in the Consumer Price Index based on
23  the 12 months immediately preceding the increase. All fees
24  collected under this part must be deposited in the Health Care
25  Trust Fund for the administration of this part.
26         400.9966  Unlicensed facilities; penalties; fines;
27  verification of licensure status.--
28         (1)  A person may not own, operate, or maintain a
29  facility without obtaining a license under this part.
30         (2)  Any person who owns, operates, or maintains an
31  unlicensed facility commits a felony of the third degree,
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 1  punishable as provided in s. 775.082, s. 775.083, or s.
 2  775.084. Each day of continued operation is a separate
 3  offense.
 4         (3)  Any person found guilty of violating subsection
 5  (2) a second or subsequent time commits a felony of the second
 6  degree, punishable as provided under s. 775.082, s. 775.083,
 7  or s. 775.084. Each day of continued operation is a separate
 8  offense.
 9         (4)  Any person who owns, operates, or maintains an
10  unlicensed facility due to a change in this part or a
11  modification in agency rules within 6 months after the
12  effective date of the change or modification and who, within
13  10 working days after receiving notification from the agency,
14  fails to cease operation or to apply for a license under this
15  part commits a felony of the third degree, punishable as
16  provided in s. 775.082, s. 775.083, or s. 775.084. Each day of
17  continued operation is a separate offense.
18         (5)  Any facility that fails to cease operation after
19  agency notification may be fined for each day of noncompliance
20  under this part.
21         (6)  When a person has an interest in more than one
22  facility and fails to obtain a license for any one of these
23  facilities, the agency may revoke the license, impose a
24  moratorium, or impose a fine under this part on any or all of
25  the licensed facilities until the unlicensed facility is
26  licensed or ceases operation.
27         (7)  Any person aware of the operation of an unlicensed
28  facility must report that facility to the agency.
29         (8)  Any health care provider who is aware of the
30  operation of an unlicensed facility shall report that facility
31  to the agency. Failure to report a facility that the provider
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 1  knows or has reasonable cause to suspect is unlicensed shall
 2  be reported to the provider's licensing board.
 3         (9)  The agency may not issue a license to a facility
 4  that has any unpaid fines assessed under this part.
 5         400.9967  Facility responsibilities.--
 6         (1)  Each facility shall appoint a facility director
 7  who shall agree in writing to accept legal responsibility for
 8  the following activities on behalf of the facility. The
 9  facility director shall:
10         (a)  Have signs identifying the facility director
11  posted in a conspicuous location within the facility readily
12  visible to all patients.
13         (b)  Ensure that all practitioners providing health
14  care services or supplies to patients maintain a current
15  active and unencumbered Florida license.
16         (c)  Review any patient referral contracts or
17  agreements executed by the facility.
18         (d)  Ensure that all health care practitioners at the
19  facility have active appropriate certification or licensure
20  for the level of care being provided.
21         (e)  Serve as the facility records owner as defined in
22  s. 456.057.
23         (f)  Ensure compliance with the recordkeeping, office
24  surgery, and adverse incident reporting requirements of
25  chapter 456, the respective practice acts, and rules adopted
26  under this part.
27         (g)  Conduct systematic reviews of facility billings to
28  ensure that the billings are not fraudulent or unlawful. Upon
29  discovery of an unlawful charge, the facility director shall
30  take immediate corrective action.
31  
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 1         (2)  Any business that becomes a facility after
 2  commencing operations must, within 5 days after becoming a
 3  facility, file a license application under this part and is
 4  subject to all provisions of this part applicable to a
 5  facility.
 6         (3)  All charges or reimbursement claims made by or on
 7  behalf of a facility that is required to be licensed under
 8  this part, but that is not so licensed, or that is otherwise
 9  operating in violation of this part, are unlawful charges, and
10  are noncompensable and unenforceable.
11         (4)  Any person establishing, operating, or managing an
12  unlicensed facility that is required to be licensed under this
13  part, or any person who knowingly files a false or misleading
14  license application or license renewal application, or false
15  or misleading information related to the application or
16  department rule, commits a felony of the third degree,
17  punishable as provided in s. 775.082, s. 775.083, or s.
18  775.084.
19         (5)  Any licensed health care provider who violates
20  this part is subject to discipline in accordance with this
21  chapter and his or her respective practice act.
22         (6)  The agency may fine, or suspend or revoke the
23  license of, any facility licensed under this part for
24  operating in violation of the requirements of this part or the
25  rules adopted by the agency.
26         (7)  The agency shall investigate allegations of
27  noncompliance with this part and the rules adopted under this
28  part.
29         (8)  Any person or entity providing health care
30  services which is not a facility may voluntarily apply for a
31  certificate of exemption from licensure under its exempt
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 1  status with the agency on a form that sets forth its name or
 2  names and addresses, a statement of the reasons why it cannot
 3  be defined as a facility, and other information deemed
 4  necessary by the agency.
 5         (9)  The facility shall display its license in a
 6  conspicuous location within the facility readily visible to
 7  all patients.
 8         (10)(a)  Each facility engaged in magnetic resonance
 9  imaging services must be accredited by the Joint Commission on
10  Accreditation of Healthcare Organizations, the American
11  College of Radiology, or the Accreditation Association for
12  Ambulatory Health Care, within 1 year after licensure.
13  However, a facility may request a single, 6-month extension if
14  it provides evidence to the agency establishing that, for good
15  cause shown, the facility cannot be accredited within 1 year
16  after licensure, and that the accreditation will be completed
17  within the 6-month extension. After obtaining accreditation as
18  required by this subsection, each facility must maintain
19  accreditation as a condition of renewal of its license.
20         (b)  The agency may disallow the application of any
21  entity formed for the purpose of avoiding compliance with the
22  accreditation provisions of this subsection and whose
23  principals were previously principals of an entity that was
24  unable to meet the accreditation requirements within the
25  specified timeframes.
26         (c)  The agency shall give full faith and credit
27  pertaining to any past variance and waiver granted to a
28  magnetic resonance imaging facility from rule 64-2002, Florida
29  Administrative Code, by the Department of Health, until
30  September 2006. After that date, the facility must request a
31  variance and waiver from the agency under s. 120.542.
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 1         400.9968  Injunctions.--
 2         (1)  The agency may institute injunctive proceedings in
 3  a court of competent jurisdiction in order to:
 4         (a)  Enforce the provisions of this part or any minimum
 5  standard, rule, or order issued or entered into under this
 6  part if the attempt by the agency to correct a violation
 7  through administrative fines has failed; if the violation
 8  materially affects the health, safety, or welfare of facility
 9  patients; or if the violation involves any operation of an
10  unlicensed facility.
11         (b)  Terminate the operation of a facility if a
12  violation of any provision of this part, or any rule adopted
13  under this part, materially affects the health, safety, or
14  welfare of facility patients.
15         (2)  Such injunctive relief may be temporary or
16  permanent.
17         (3)  If action is necessary to protect facility
18  patients from life-threatening situations, the court may allow
19  a temporary injunction without bond upon proper proof being
20  made. If it appears by competent evidence or a sworn,
21  substantiated affidavit that a temporary injunction should be
22  issued, the court, pending the determination on final hearing,
23  shall enjoin operation of the facility.
24         400.9969  Agency actions.--Administrative proceedings
25  challenging agency licensure enforcement action shall be
26  reviewed on the basis of the facts and conditions that
27  resulted in the agency action.
28         400.997  Agency administrative penalties.--
29         (1)  The agency may impose administrative penalties
30  against a facility of up to $5,000 per violation for
31  violations of the requirements of this part. In determining if
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 1  a penalty is to be imposed and in fixing the amount of the
 2  fine, the agency shall consider the following factors:
 3         (a)  The gravity of the violation, including the
 4  probability that death or serious physical or emotional harm
 5  to a patient will result or has resulted, the severity of the
 6  action or potential harm, and the extent to which the
 7  provisions of the applicable laws or rules were violated.
 8         (b)  Actions taken by the owner or the facility
 9  director to correct violations.
10         (c)  Any previous violations.
11         (d)  The financial benefit to the facility of
12  committing or continuing the violation.
13         (2)  Each day of continuing violation after the date
14  fixed for termination of the violation, as ordered by the
15  agency, constitutes an additional, separate, and distinct
16  violation.
17         (3)  Any action taken to correct a violation shall be
18  documented in writing by the owner or facility director and
19  verified through followup visits by agency personnel. The
20  agency may impose a fine and, in the case of an owner-operated
21  facility, revoke or deny a facility's license when an owner or
22  facility director fraudulently misrepresents actions taken to
23  correct a violation.
24         (4)  For fines that are upheld following administrative
25  or judicial review, the violator shall pay the fine, plus
26  interest at the rate as specified in s. 55.03, for each day
27  beyond the date set by the agency for payment of the fine.
28         (5)  Any unlicensed facility that continues to operate
29  after agency notification is subject to a fine of $1,000 per
30  day.
31  
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 1         (6)  Any licensed facility whose owner or facility
 2  director concurrently operates an unlicensed facility shall be
 3  subject to an administrative fine of $5,000 per day.
 4         (7)  Any facility whose owner fails to apply for a
 5  change-of-ownership license in accordance with s. 400.9964 and
 6  operates the facility under the new ownership is subject to a
 7  fine of $5,000.
 8         (8)  The agency, as an alternative to or in conjunction
 9  with an administrative action against a facility for
10  violations of this part and adopted rules, shall make a
11  reasonable attempt to discuss each violation and recommended
12  corrective action with the owner or facility director prior to
13  written notification. The agency, instead of fixing a period
14  within which the facility shall enter into compliance with
15  standards, may request a plan of corrective action from the
16  facility which demonstrates a good faith effort to remedy each
17  violation by a specific date, subject to the approval of the
18  agency.
19         (9)  Administrative fines paid by any facility under
20  this section shall be deposited into the Health Care Trust
21  Fund.
22         Section 2.  This act shall take effect October 1, 2004.
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 1            *****************************************
 2                          SENATE SUMMARY
 3    Creates part XIV of ch. 400, F.S., entitled the
      Independent Diagnostic Testing Facility Act. Provides for
 4    definitions and exclusions. Provides for the licensure,
      inspection, and regulation of independent diagnostic
 5    testing facilities by the Agency for Health Care
      Administration. Requires licensure and background
 6    screening. Provides for facility inspections and
      rulemaking authority. Provides for licensure fees.
 7    Authorizes fines and penalties for operating an
      unlicensed facility. Directs facility responsibilities
 8    with respect to personnel and operations. Provides
      accreditation requirements. Provides for injunctive
 9    proceedings and agency actions. Authorizes administrative
      penalties.
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