CS/HB 7083

1
A bill to be entitled
2An act relating to health care fraud and abuse; amending
3s. 400.147, F.S.; revising the definition of the term
4"adverse incident"; amending s. 400.462, F.S.; revising
5definitions; amending s. 400.464, F.S.; authorizing a home
6infusion therapy provider to be licensed as a nurse
7registry; deleting provisions relating to Medicare
8reimbursement; amending s. 400.471, F.S.; requiring an
9applicant for a home health agency license to submit to
10the Agency for Health Care Administration a business plan
11and evidence of contingency funding and disclose other
12controlling ownership interests in health care entities;
13requiring certain standards in documentation demonstrating
14financial ability to operate; prohibiting the agency from
15issuing an initial license to a home health agency
16licensure applicant located within 10 miles of a licensed
17home health agency that has common controlling interests;
18prohibiting the transfer of an application to another home
19health agency prior to issuance of the license; requiring
20submission of an initial application to relocate a
21licensed home health agency to another geographic service
22area; amending s. 400.474, F.S.; providing additional
23grounds under which the agency may take disciplinary
24action against a home health agency; providing for a fine;
25creating s. 400.476, F.S.; establishing staffing
26requirements for home health agencies; reducing the number
27of home health agencies that an administrator or director
28of nursing may serve; requiring that an alternate
29administrator be designated in writing; limiting the
30period that a home health agency that provides skilled
31nursing care may operate without a director of nursing;
32requiring notification upon the termination and
33replacement of a director of nursing; requiring the agency
34to take administrative enforcement action against a home
35health agency for noncompliance with the notification and
36staffing requirements for a director of nursing; providing
37for fines; exempting a home health agency that does not
38provide skilled care or provides only physical,
39occupational, or speech therapy from requirements related
40to a director of nursing; providing training requirements
41for certified nursing assistants and home health aides;
42amending s. 400.484, F.S.; requiring the agency to impose
43administrative fines for certain deficiencies; increasing
44the administrative fines imposed for certain deficiencies;
45amending s. 400.491, F.S.; extending the period that a
46home health agency must retain records of the nonskilled
47care it provides; amending s. 400.497, F.S.; requiring
48that the agency adopt rules related to standards for the
49director of nursing of a home health agency, requirements
50for a director of nursing to submit certified staff
51activity logs pursuant to an agency request, quality
52assurance programs, and inspections related to an
53application for a change in ownership; amending s.
54400.506, F.S.; providing training requirements for
55certified nursing assistants and home health aides
56referred for contract by a nurse registry; amending s,
57409.901, F.S.; defining the term "change of ownership";
58amending s. 409.907, F.S.; revising provisions relating to
59change of ownership of Medicaid provider agreements;
60providing for continuing financial liability of a
61transferor under certain circumstances; defining the term
62"outstanding overpayment"; requiring the transferor to
63provide notice of change of ownership to the agency within
64a specified time period; requiring the transferee to
65submit a Medicaid provider enrollment application to the
66agency; providing for joint and several liability under
67certain circumstances; requiring a written payment plan
68for certain outstanding financial obligations; providing
69conditions under which additional enrollment effective
70dates apply; amending s. 409.910, F.S.; conforming a
71cross-reference; amending s. 409.912, F.S.; requiring the
72agency to limit its network of Medicaid durable medical
73equipment and medical supply providers; prohibiting
74reimbursement for dates of service after January 1, 2009;
75requiring accreditation; requiring direct provision of
76services or supplies; authorizing provider to store
77nebulizers at a physician's office under certain
78circumstances; imposing certain physical location
79requirements; requiring providers to maintain a certain
80stock of equipment and supplies; requiring a surety bond;
81requiring background screening of employees; providing for
82certain exemptions; providing an effective date.
83
84Be It Enacted by the Legislature of the State of Florida:
85
86     Section 1.  Paragraph (e) of subsection (5) of section
87400.147, Florida Statutes, is amended to read:
88     400.147  Internal risk management and quality assurance
89program.--
90     (5)  For purposes of reporting to the agency under this
91section, the term "adverse incident" means:
92     (e)  An event that is reported to a law enforcement agency
93regarding a resident, other than a request for transportation.
94     Section 2.  Subsections (1), (5), (10), (14), and (25) of
95section 400.462, Florida Statutes, are amended to read:
96     400.462  Definitions.--As used in this part, the term:
97     (1)  "Administrator" means a direct employee, as defined in
98subsection (9), who is. The administrator must be a licensed
99physician, physician assistant, or registered nurse licensed to
100practice in this state or an individual having at least 1 year
101of supervisory or administrative experience in home health care
102or in a facility licensed under chapter 395, under part II of
103this chapter, or under part I of chapter 429. An administrator
104may manage a maximum of five licensed home health agencies
105located within one agency service district or within an
106immediately contiguous county. If the home health agency is
107licensed under this chapter and is part of a retirement
108community that provides multiple levels of care, an employee of
109the retirement community may administer the home health agency
110and up to a maximum of four entities licensed under this chapter
111or chapter 429 that are owned, operated, or managed by the same
112corporate entity. An administrator shall designate, in writing,
113for each licensed entity, a qualified alternate administrator to
114serve during absences.
115     (5)  "Certified nursing assistant" means any person who has
116been issued a certificate under part II of chapter 464. The
117licensed home health agency or licensed nurse registry shall
118ensure that the certified nursing assistant employed by or under
119contract with the home health agency or licensed nurse registry
120is adequately trained to perform the tasks of a home health aide
121in the home setting.
122     (10)  "Director of nursing" means a registered nurse who is
123a direct employee, as defined in subsection (9), of the agency
124and who is a graduate of an approved school of nursing and is
125licensed in this state; who has at least 1 year of supervisory
126experience as a registered nurse; and who is responsible for
127overseeing the professional nursing and home health aid delivery
128of services of the agency. A director of nursing may be the
129director of a maximum of five licensed home health agencies
130operated by a related business entity and located within one
131agency service district or within an immediately contiguous
132county. If the home health agency is licensed under this chapter
133and is part of a retirement community that provides multiple
134levels of care, an employee of the retirement community may
135serve as the director of nursing of the home health agency and
136of up to four entities licensed under this chapter or chapter
137429 which are owned, operated, or managed by the same corporate
138entity.
139     (14)  "Home health aide" means a person who is trained or
140qualified, as provided by rule, and who provides hands-on
141personal care, performs simple procedures as an extension of
142therapy or nursing services, assists in ambulation or exercises,
143or assists in administering medications as permitted in rule and
144for which the person has received training established by the
145agency under s. 400.497(1). The licensed home health agency or
146licensed nurse registry shall ensure that the home health aide
147employed by or under contract with the home health agency or
148licensed nurse registry is adequately trained to perform the
149tasks of a home health aide in the home setting.
150     (25)  "Staffing services" means services provided to a
151health care facility, school, or other business entity on a
152temporary or school-year basis pursuant to a written contract by
153licensed health care personnel and by certified nursing
154assistants and home health heath aides who are employed by, or
155work under the auspices of, a licensed home health agency or who
156are registered with a licensed nurse registry. Staffing services
157may be provided anywhere within the state.
158     Section 3.  Subsection (3) of section 400.464, Florida
159Statutes, is amended to read:
160     400.464  Home health agencies to be licensed; expiration of
161license; exemptions; unlawful acts; penalties.--
162     (3)  A Any home infusion therapy provider must shall be
163licensed as a home health agency or nurse registry. Any infusion
164therapy provider currently authorized to receive Medicare
165reimbursement under a DME - Part B Provider number for the
166provision of infusion therapy shall be licensed as a
167noncertified home health agency. Such a provider shall continue
168to receive that specified Medicare reimbursement without being
169certified so long as the reimbursement is limited to those items
170authorized pursuant to the DME - Part B Provider Agreement and
171the agency is licensed in compliance with the other provisions
172of this part.
173     Section 4.  Paragraphs (d), (e), (f), and (g) are added to
174subsection (2) of section 400.471, Florida Statutes, and
175subsections (7), (8), and (9) are added to that section, to
176read:
177     400.471  Application for license; fee.--
178     (2)  In addition to the requirements of part II of chapter
179408, the initial applicant must file with the application
180satisfactory proof that the home health agency is in compliance
181with this part and applicable rules, including:
182     (d)  A business plan, signed by the applicant, which
183details the home health agency's methods to obtain patients and
184its plan to recruit and maintain staff.
185     (e)  Evidence of contingency funding equal to 1 month's
186average operating expenses during the first year of operation.
187     (f)  A balance sheet, income and expense statement, and
188statement of cash flows for the first 2 years of operation which
189provide evidence of having sufficient assets, credit, and
190projected revenues to cover liabilities and expenses. The
191applicant has demonstrated financial ability to operate if the
192applicant's assets, credit, and projected revenues meet or
193exceed projected liabilities and expenses. An applicant may not
194project an operating margin of 15 percent or greater for any
195month in the first year of operation. All documents required
196under this paragraph must be prepared in accordance with
197generally accepted accounting principles and compiled and signed
198by a certified public accountant.
199     (g)  All other ownership interests in health care entities
200for each controlling interest, as defined in part II of chapter
201408.
202     (7)  The agency may not issue an initial license to a home
203health agency licensure applicant if the applicant shares common
204controlling interests with another licensed home health agency
205that is located within 10 miles of the applicant and is in the
206same county. The agency must return the application and fees to
207the applicant.
208     (8)  An application for a home health agency license may
209not be transferred to another home health agency or controlling
210interest prior to issuance of the license.
211     (9)  A licensed home health agency that seeks to relocate
212to a different geographic service area not listed on its license
213must submit an initial application for a home health agency
214license for the new location.
215     Section 5.  Section 400.474, Florida Statutes, is amended
216to read:
217     400.474  Administrative penalties.--
218     (1)(a)  The agency may deny, revoke, and suspend a license
219and impose an administrative fine in the manner provided in
220chapter 120.
221     (b)  The agency shall impose a fine of $1,000 against a
222home health agency that demonstrates a pattern of falsifying:
223     1.  Documents of training for home health aides or
224certified nursing assistants; or
225     2.  Health statements for staff providing direct care to
226patients.
227
228A pattern may be demonstrated by a showing of at least three
229fraudulent entries or documents. The fine shall be imposed for
230each fraudulent document or, if multiple staff members are
231included on one document, for each fraudulent entry on the
232document.
233     (2)  Any of the following actions by a home health agency
234or its employee is grounds for disciplinary action by the
235agency:
236     (a)  Violation of this part, part II of chapter 408, or of
237applicable rules.
238     (b)  An intentional, reckless, or negligent act that
239materially affects the health or safety of a patient.
240     (c)  Knowingly providing home health services in an
241unlicensed assisted living facility or unlicensed adult family-
242care home, unless the home health agency or employee reports the
243unlicensed facility or home to the agency within 72 hours after
244providing the services.
245     (d)  Preparing or maintaining fraudulent patient records,
246such as, but not limited to, charting ahead, recording vital
247signs or symptoms that were not personally obtained or observed
248by the home health agency's staff at the time indicated,
249borrowing patients or patient records from other home health
250agencies to pass a survey or inspection, or falsifying
251signatures.
252     (e)  Failing to provide at least one service directly to a
253patient for a period of 60 days.
254     (3)(a)  In addition to the requirements of s. 408.813, any
255person, partnership, or corporation that violates s. 408.813 and
256that previously operated a licensed home health agency or
257concurrently operates both a licensed home health agency and an
258unlicensed home health agency commits a felony of the third
259degree punishable as provided in s. 775.082, s. 775.083, or s.
260775.084.
261     (b)  If any home health agency is found to be operating
262without a license and that home health agency has received any
263government reimbursement for services, the agency shall make a
264fraud referral to the appropriate government reimbursement
265program.
266     Section 6.  Section 400.476, Florida Statutes, is created
267to read:
268     400.476  Staffing requirements; notifications; limitations
269on staffing services.--
270     (1)  ADMINISTRATOR.--
271     (a)  An administrator may manage only one home health
272agency, except that an administrator may manage up to five home
273health agencies if all five home health agencies have identical
274controlling interests as defined in s. 408.803 and are located
275within one agency geographic service area or within an
276immediately contiguous county. If the home health agency is
277licensed under this chapter and is part of a retirement
278community that provides multiple levels of care, an employee of
279the retirement community may administer the home health agency
280and up to a maximum of four entities licensed under this chapter
281or chapter 429 which all have identical controlling interests as
282defined in s. 408.803. An administrator shall designate, in
283writing, for each licensed entity, a qualified alternate
284administrator to serve during the administrator's absence.
285     (b)  An administrator of a home health agency who is a
286licensed physician, physician assistant, or registered nurse
287licensed to practice in this state may also be the director of
288nursing for a home health agency. An administrator may serve as
289a director of nursing for up to the number of entities
290authorized in subsection (2) only if there are 10 or fewer full-
291time equivalent employees and contracted personnel in each home
292health agency.
293     (2)  DIRECTOR OF NURSING.--
294     (a)  A director of nursing may be the director of nursing
295for:
296     1.  Up to two licensed home health agencies if the agencies
297have identical controlling interests as defined in s. 408.803
298and are located within one agency geographic service area or
299within an immediately contiguous county; or
300     2.  Up to five licensed home health agencies if:
301     a.  All of the home health agencies have identical
302controlling interests as defined in s. 408.803;
303     b.  All of the home health agencies are located within one
304agency geographic service area or within an immediately
305contiguous county; and
306     c.  Each home health agency has a registered nurse who
307meets the qualifications of a director of nursing and who has a
308written delegation from the director of nursing to serve as the
309director of nursing for that home health agency when the
310director of nursing is not present.
311
312If a home health agency licensed under this chapter is part of a
313retirement community that provides multiple levels of care, an
314employee of the retirement community may serve as the director
315of nursing of the home health agency and up to a maximum of four
316entities, other than home health agencies, licensed under this
317chapter or chapter 429 which all have identical controlling
318interests as defined in s. 408.803.
319     (b)  A home health agency that provides skilled nursing
320care may not operate for more than 30 calendar days without a
321director of nursing. A home health agency that provides skilled
322nursing care and the director of nursing of the home health
323agency must notify the agency within 10 business days after
324termination of the services of the director of nursing for the
325home health agency. A home health agency that provides skilled
326nursing care must notify the agency of the identity and
327qualifications of the new director of nursing within 10 days
328after the new director is hired. If a home health agency that
329provides skilled nursing care operates for more than 30 calendar
330days without a director of nursing, the home health agency
331commits a class II deficiency. In addition to the fine for a
332class II deficiency, the agency may issue a moratorium in
333accordance with s. 408.814 or revoke the license. The agency
334shall fine a home health agency that fails to notify the agency
335as required in this paragraph $1,000 for the first violation and
336$2,000 for a repeat violation. The agency may not take
337administrative action against a home health agency if the
338director of nursing fails to notify the department upon
339termination of services as the director of nursing for the home
340health agency.
341     (c)  A home health agency that does not provide skilled
342care or provides only physical, occupational, or speech therapy
343is not required to have a director of nursing and is exempt from
344paragraph (b).
345     (3)  TRAINING.--A home health agency shall ensure that each
346certified nursing assistant employed by or under contract with
347the home health agency and each home health aide employed by or
348under contract with the home health agency is adequately trained
349to perform the tasks of a home health aide in the home setting.
350     (4)  STAFFING.--Staffing services may be provided anywhere
351within the state.
352     Section 7.  Section 400.484, Florida Statutes, is amended
353to read:
354     400.484  Right of inspection; deficiencies; fines.--
355     (1)  In addition to the requirements of s. 408.811, the
356agency may make such inspections and investigations as are
357necessary in order to determine the state of compliance with
358this part, part II of chapter 408, and applicable rules.
359     (2)  The agency shall impose fines for various classes of
360deficiencies in accordance with the following schedule:
361     (a)  A class I deficiency is any act, omission, or practice
362that results in a patient's death, disablement, or permanent
363injury, or places a patient at imminent risk of death,
364disablement, or permanent injury. Upon finding a class I
365deficiency, the agency shall may impose an administrative fine
366in the amount of $15,000 $5,000 for each occurrence and each day
367that the deficiency exists.
368     (b)  A class II deficiency is any act, omission, or
369practice that has a direct adverse effect on the health, safety,
370or security of a patient. Upon finding a class II deficiency,
371the agency shall may impose an administrative fine in the amount
372of $5,000 $1,000 for each occurrence and each day that the
373deficiency exists.
374     (c)  A class III deficiency is any act, omission, or
375practice that has an indirect, adverse effect on the health,
376safety, or security of a patient. Upon finding an uncorrected or
377repeated class III deficiency, the agency shall may impose an
378administrative fine not to exceed $1,000 $500 for each
379occurrence and each day that the uncorrected or repeated
380deficiency exists.
381     (d)  A class IV deficiency is any act, omission, or
382practice related to required reports, forms, or documents which
383does not have the potential of negatively affecting patients.
384These violations are of a type that the agency determines do not
385threaten the health, safety, or security of patients. Upon
386finding an uncorrected or repeated class IV deficiency, the
387agency shall may impose an administrative fine not to exceed
388$500 $200 for each occurrence and each day that the uncorrected
389or repeated deficiency exists.
390     (3)  In addition to any other penalties imposed pursuant to
391this section or part, the agency may assess costs related to an
392investigation that results in a successful prosecution,
393excluding costs associated with an attorney's time.
394     Section 8.  Subsection (2) of section 400.491, Florida
395Statutes, is amended to read:
396     400.491  Clinical records.--
397     (2)  The home health agency must maintain for each client
398who receives nonskilled care a service provision plan. Such
399records must be maintained by the home health agency for 3 years
4001 year following termination of services.
401     Section 9.  Subsections (5), (6), (7), and (8) of section
402400.497, Florida Statutes, are renumbered as subsections (7),
403(8), (9), and (10), respectively, and new subsections (5) and
404(6) are added to that section to read:
405     400.497  Rules establishing minimum standards.--The agency
406shall adopt, publish, and enforce rules to implement part II of
407chapter 408 and this part, including, as applicable, ss. 400.506
408and 400.509, which must provide reasonable and fair minimum
409standards relating to:
410     (5)  Oversight by the director of nursing. The agency shall
411develop rules related to:
412     (a)  Standards that address oversight responsibilities by
413the director of nursing of skilled nursing and personal care
414services provided by the home health agency's staff;
415     (b)  Requirements for a director of nursing to provide to
416the agency, upon request, a certified daily report of the home
417health services provided by a specified direct employee or
418contracted staff member on behalf of the home health agency. The
419agency may request a certified daily report only for a period
420not to exceed 2 years prior to the date of the request; and
421     (c)  A quality assurance program for home health services
422provided by the home health agency.
423     (6)  Conditions for using a recent unannounced licensure
424inspection for the inspection required in s. 408.806 related to
425a licensure application associated with a change in ownership of
426a licensed home health agency.
427     Section 10.  Paragraph (a) of subsection (6) of section
428400.506, Florida Statutes, is amended to read:
429     400.506  Licensure of nurse registries; requirements;
430penalties.--
431     (6)(a)  A nurse registry may refer for contract in private
432residences registered nurses and licensed practical nurses
433registered and licensed under part I of chapter 464, certified
434nursing assistants certified under part II of chapter 464, home
435health aides who present documented proof of successful
436completion of the training required by rule of the agency, and
437companions or homemakers for the purposes of providing those
438services authorized under s. 400.509(1). A licensed nurse
439registry shall ensure that each certified nursing assistant
440referred for contract by the nurse registry and each home health
441aide referred for contract by the nurse registry is adequately
442trained to perform the tasks of a home health aide in the home
443setting. Each person referred by a nurse registry must provide
444current documentation that he or she is free from communicable
445diseases.
446     Section 11.  Subsections (5) through (27) of section
447409.901, Florida Statutes, are renumbered as subsections (6)
448through (28), respectively, and a new subsection (5) is added to
449that section to read:
450     409.901  Definitions; ss. 409.901-409.920.--As used in ss.
451409.901-409.920, except as otherwise specifically provided, the
452term:
453     (5)  "Change of ownership" means an event in which the
454provider changes to a different legal entity or in which 45
455percent or more of the ownership, voting shares, or controlling
456interest in a corporation whose shares are not publicly traded
457on a recognized stock exchange is transferred or assigned,
458including the final transfer or assignment of multiple transfers
459or assignments over a 2-year period that cumulatively total 45
460percent or greater. A change solely in the management company or
461board of directors is not a change of ownership.
462     Section 12.  Subsections (6) and (9) of section 409.907,
463Florida Statutes, are amended to read:
464     409.907  Medicaid provider agreements.--The agency may make
465payments for medical assistance and related services rendered to
466Medicaid recipients only to an individual or entity who has a
467provider agreement in effect with the agency, who is performing
468services or supplying goods in accordance with federal, state,
469and local law, and who agrees that no person shall, on the
470grounds of handicap, race, color, or national origin, or for any
471other reason, be subjected to discrimination under any program
472or activity for which the provider receives payment from the
473agency.
474     (6)  A Medicaid provider agreement may be revoked, at the
475option of the agency, as the result of a change of ownership of
476any facility, association, partnership, or other entity named as
477the provider in the provider agreement. A provider shall give
478the agency 60 days' notice before making any change in ownership
479of the entity named in the provider agreement as the provider.
480     (a)  In the event of a change of ownership, the transferor
481shall remain liable for all outstanding overpayments,
482administrative fines, and any other moneys owed to the agency
483prior to the effective date of the change of ownership. In
484addition to the continuing liability of the transferor, the
485transferee shall be liable to the agency for all outstanding
486overpayments identified by the agency on or before the effective
487date of the change of ownership. For purposes of this
488subsection, the term "outstanding overpayment" includes any
489amount identified in a preliminary audit report issued to the
490transferor by the agency on or before the effective date of the
491change of ownership. In the event of a change of ownership for a
492skilled nursing facility or intermediate care facility, the
493Medicaid provider agreement shall be assigned to the transferee
494if the transferee meets all other Medicaid provider
495qualifications. In the event of a change of ownership involving
496a skilled nursing facility licensed under part II of chapter
497400, liability for all outstanding overpayments, administrative
498fines, and any moneys owed to the agency prior to the effective
499date of the change of ownership shall be determined in
500accordance with the provisions of s. 400.179.
501     (b)  At least 60 days prior to the anticipated date of the
502change of ownership, the transferor shall notify the agency of
503the intended change of ownership and the transferee shall submit
504to the agency a Medicaid provider enrollment application. In the
505event a change of ownership occurs without compliance with the
506notice requirements of this subsection, the transferor and
507transferee shall be jointly and severally liable for all
508overpayments, administrative fines, and other moneys due to the
509agency, regardless of whether the agency identified the
510overpayments, administrative fines, or other moneys before or
511after the effective date of the change of ownership. The agency
512shall not approve a transferee's Medicaid provider enrollment
513application if the transferee or transferor has not paid or
514agreed in writing to a payment plan for all outstanding
515overpayments, administrative fines, and other moneys due to the
516agency. This subsection does not preclude the agency from
517seeking any other legal or equitable remedies available to the
518agency for the recovery of moneys owed to the Medicaid program.
519In the event of a change of ownership involving a skilled
520nursing facility licensed under part II of chapter 400,
521liability for all outstanding overpayments, administrative
522fines, and any moneys owed to the agency prior to the effective
523date of the change of ownership shall be determined in
524accordance with the provisions of s. 400.179 if the Medicaid
525provider enrollment application for change of ownership is
526submitted prior to the change of ownership.
527     (9)  Upon receipt of a completed, signed, and dated
528application, and completion of any necessary background
529investigation and criminal history record check, the agency must
530either:
531     (a)  Enroll the applicant as a Medicaid provider upon
532approval of the provider application. The enrollment effective
533date shall be the date the agency receives the provider
534application. With respect to a provider that requires a Medicare
535certification survey, the enrollment effective date shall be the
536date the certification is awarded. With respect to a provider
537that completes a change of ownership, the effective date shall
538be the date the agency received the application, the date the
539change of ownership was complete, or the date the applicant
540became eligible to provide services under Medicaid, whichever
541date is later. With respect to a provider of emergency medical
542services transportation or emergency services and care, the
543effective date is the date the services were rendered. Payment
544for any claims for services provided to Medicaid recipients
545between the date of receipt of the application and the date of
546approval is contingent on applying any and all applicable audits
547and edits contained in the agency's claims adjudication and
548payment processing systems; or
549     (b)  Deny the application if the agency finds that it is in
550the best interest of the Medicaid program to do so. The agency
551may consider the factors listed in subsection (10), as well as
552any other factor that could affect the effective and efficient
553administration of the program, including, but not limited to,
554the applicant's demonstrated ability to provide services,
555conduct business, and operate a financially viable concern; the
556current availability of medical care, services, or supplies to
557recipients, taking into account geographic location and
558reasonable travel time; the number of providers of the same type
559already enrolled in the same geographic area; and the
560credentials, experience, success, and patient outcomes of the
561provider for the services that it is making application to
562provide in the Medicaid program. The agency shall deny the
563application if the agency finds that a provider; any officer,
564director, agent, managing employee, or affiliated person; or any
565partner or shareholder having an ownership interest equal to 5
566percent or greater in the provider if the provider is a
567corporation, partnership, or other business entity, has failed
568to pay all outstanding fines or overpayments assessed by final
569order of the agency or final order of the Centers for Medicare
570and Medicaid Services, not subject to further appeal, unless the
571provider agrees to a repayment plan that includes withholding
572Medicaid reimbursement until the amount due is paid in full.
573     Section 13.  Subsection (20) of section 409.910, Florida
574Statutes, is amended to read:
575     409.910  Responsibility for payments on behalf of Medicaid-
576eligible persons when other parties are liable.--
577     (20)  Entities providing health insurance as defined in s.
578624.603, health maintenance organizations and prepaid health
579clinics as defined in chapter 641, and, on behalf of their
580clients, third-party administrators and pharmacy benefits
581managers as defined in s. 409.901(27)(26) shall provide such
582records and information as are necessary to accomplish the
583purpose of this section, unless such requirement results in an
584unreasonable burden.
585     (a)  The director of the agency and the Director of the
586Office of Insurance Regulation of the Financial Services
587Commission shall enter into a cooperative agreement for
588requesting and obtaining information necessary to effect the
589purpose and objective of this section.
590     1.  The agency shall request only that information
591necessary to determine whether health insurance as defined
592pursuant to s. 624.603, or those health services provided
593pursuant to chapter 641, could be, should be, or have been
594claimed and paid with respect to items of medical care and
595services furnished to any person eligible for services under
596this section.
597     2.  All information obtained pursuant to subparagraph 1. is
598confidential and exempt from s. 119.07(1).
599     3.  The cooperative agreement or rules adopted under this
600subsection may include financial arrangements to reimburse the
601reporting entities for reasonable costs or a portion thereof
602incurred in furnishing the requested information. Neither the
603cooperative agreement nor the rules shall require the automation
604of manual processes to provide the requested information.
605     (b)  The agency and the Financial Services Commission
606jointly shall adopt rules for the development and administration
607of the cooperative agreement. The rules shall include the
608following:
609     1.  A method for identifying those entities subject to
610furnishing information under the cooperative agreement.
611     2.  A method for furnishing requested information.
612     3.  Procedures for requesting exemption from the
613cooperative agreement based on an unreasonable burden to the
614reporting entity.
615     Section 14.  Subsection (48) of section 409.912, Florida
616Statutes, is amended to read:
617     409.912  Cost-effective purchasing of health care.--The
618agency shall purchase goods and services for Medicaid recipients
619in the most cost-effective manner consistent with the delivery
620of quality medical care. To ensure that medical services are
621effectively utilized, the agency may, in any case, require a
622confirmation or second physician's opinion of the correct
623diagnosis for purposes of authorizing future services under the
624Medicaid program. This section does not restrict access to
625emergency services or poststabilization care services as defined
626in 42 C.F.R. part 438.114. Such confirmation or second opinion
627shall be rendered in a manner approved by the agency. The agency
628shall maximize the use of prepaid per capita and prepaid
629aggregate fixed-sum basis services when appropriate and other
630alternative service delivery and reimbursement methodologies,
631including competitive bidding pursuant to s. 287.057, designed
632to facilitate the cost-effective purchase of a case-managed
633continuum of care. The agency shall also require providers to
634minimize the exposure of recipients to the need for acute
635inpatient, custodial, and other institutional care and the
636inappropriate or unnecessary use of high-cost services. The
637agency shall contract with a vendor to monitor and evaluate the
638clinical practice patterns of providers in order to identify
639trends that are outside the normal practice patterns of a
640provider's professional peers or the national guidelines of a
641provider's professional association. The vendor must be able to
642provide information and counseling to a provider whose practice
643patterns are outside the norms, in consultation with the agency,
644to improve patient care and reduce inappropriate utilization.
645The agency may mandate prior authorization, drug therapy
646management, or disease management participation for certain
647populations of Medicaid beneficiaries, certain drug classes, or
648particular drugs to prevent fraud, abuse, overuse, and possible
649dangerous drug interactions. The Pharmaceutical and Therapeutics
650Committee shall make recommendations to the agency on drugs for
651which prior authorization is required. The agency shall inform
652the Pharmaceutical and Therapeutics Committee of its decisions
653regarding drugs subject to prior authorization. The agency is
654authorized to limit the entities it contracts with or enrolls as
655Medicaid providers by developing a provider network through
656provider credentialing. The agency may competitively bid single-
657source-provider contracts if procurement of goods or services
658results in demonstrated cost savings to the state without
659limiting access to care. The agency may limit its network based
660on the assessment of beneficiary access to care, provider
661availability, provider quality standards, time and distance
662standards for access to care, the cultural competence of the
663provider network, demographic characteristics of Medicaid
664beneficiaries, practice and provider-to-beneficiary standards,
665appointment wait times, beneficiary use of services, provider
666turnover, provider profiling, provider licensure history,
667previous program integrity investigations and findings, peer
668review, provider Medicaid policy and billing compliance records,
669clinical and medical record audits, and other factors. Providers
670shall not be entitled to enrollment in the Medicaid provider
671network. The agency shall determine instances in which allowing
672Medicaid beneficiaries to purchase durable medical equipment and
673other goods is less expensive to the Medicaid program than long-
674term rental of the equipment or goods. The agency may establish
675rules to facilitate purchases in lieu of long-term rentals in
676order to protect against fraud and abuse in the Medicaid program
677as defined in s. 409.913. The agency may seek federal waivers
678necessary to administer these policies.
679     (48)(a)  A provider is not entitled to enrollment in the
680Medicaid provider network. The agency may implement a Medicaid
681fee-for-service provider network controls, including, but not
682limited to, competitive procurement and provider credentialing.
683If a credentialing process is used, the agency may limit its
684provider network based upon the following considerations:
685beneficiary access to care, provider availability, provider
686quality standards and quality assurance processes, cultural
687competency, demographic characteristics of beneficiaries,
688practice standards, service wait times, provider turnover,
689provider licensure and accreditation history, program integrity
690history, peer review, Medicaid policy and billing compliance
691records, clinical and medical record audit findings, and such
692other areas that are considered necessary by the agency to
693ensure the integrity of the program.
694     (b)  The agency shall limit its network of durable medical
695equipment and medical supply providers. For dates of service
696after January 1, 2009, the agency shall limit payment for
697durable medical equipment and supplies to providers that meet
698all the requirements of this paragraph.
699     1.  Providers must be accredited by a Centers for Medicare
700and Medicaid Services Deemed Accreditation Organization for
701suppliers of durable medical equipment, prosthetics, orthotics,
702and supplies. The provider must maintain accreditation and shall
703be subject to unannounced reviews by the accrediting
704organization.
705     2.  Providers must provide the services or supplies
706directly to the Medicaid recipient or caregiver at the provider
707location or recipient's residence or send the supplies directly
708to the recipient's residence with receipt of mailed delivery.
709Subcontracting or consignment of the service or supply to a
710third party is prohibited.
711     3.  Notwithstanding subparagraph 2., a durable medical
712equipment provider may store nebulizers at a physician's office
713for the purpose of having the physician's staff issue the
714equipment if it meets all of the following conditions:
715     a.  The physician must document the medical necessity and
716need to prevent further deterioration of the patient's
717respiratory status by the timely delivery of the nebulizer in
718the physician's office.
719     b.  The durable medical equipment provider must have
720written documentation of the competency and training by a
721Florida-licensed registered respiratory therapist of any durable
722medical equipment staff who participates in the training of
723physician office staff for the use of nebulizers, including
724cleaning, warranty, and special needs of patients.
725     c.  The physician's office must have documented the
726training and competency of any staff member who initiates the
727delivery of nebulizers to patients. The durable medical
728equipment provider must maintain copies of all physician office
729training.
730     d.  The physician's office must maintain inventory records
731of stored nebulizers, including documentation of the durable
732medical equipment provider source.
733     e.  A physician contracted with a Medicaid durable medical
734equipment provider may not have a financial relationship with
735that provider or receive any financial gain from the delivery of
736nebulizers to patients.
737     4.  Providers must have a physical business location
738clearly identified as a business that furnishes durable medical
739equipment or medical supplies by signage that can be read from
74020 feet away. The location must be readily accessible to the
741public during normal, scheduled, posted business hours and must
742operate no less than 5 hours per day and no less than 5 days per
743week, with the exception of scheduled and posted holidays, and
744must have a functional landline business phone. The location
745shall not be located within or at the same numbered street
746address as another enrolled Medicaid durable medical equipment
747or medical supply provider or as an enrolled Medicaid pharmacy
748that is also enrolled as a durable medical equipment provider.
749The location shall be within the state or no more than 50 miles
750from the Florida state line. The agency may make exceptions for
751providers of durable medical equipment or supplies not otherwise
752available from other enrolled providers located within the
753state.
754     5.  Providers must maintain a stock of durable medical
755equipment and medical supplies on site that is readily available
756to meet the needs of the durable medical equipment business
757location's customers.
758     6.  Providers must provide a surety bond of $50,000 for
759each provider location, up to a maximum of five bonds statewide
760or an aggregate bond of $250,000 statewide, as identified by
761federal employer identification number. Providers who post a
762statewide or an aggregate bond must identify all of their
763locations in any Medicaid durable medical equipment and medical
764supply provider enrollment application or bond renewal. Each
765provider location's surety bond must be renewed annually, and
766the provider must submit proof of renewal even if the original
767bond is a continuous bond.
768     7.  Providers must obtain a level 2 background screening,
769as provided under s. 435.04, for each provider employee in
770direct contact with or providing direct services to recipients
771of durable medical equipment and medical supplies in their
772homes. This requirement includes, but is not limited to, repair
773and service technicians, fitters, and delivery staff. The cost
774of the background screening shall be borne by the provider.
775     8.  The following providers are exempt from the
776requirements of subparagraphs 1. and 6.:
777     a.  Durable medical equipment providers owned and operated
778by a government entity.
779     b.  Durable medical equipment providers that are operating
780within a pharmacy that is currently enrolled as a Medicaid
781pharmacy provider.
782     c.  Active, Medicaid-enrolled orthopedic physician groups,
783primarily owned by physicians, that provide only orthotic and
784prosthetic devices.
785     Section 15.  This act shall take effect July 1, 2008.


CODING: Words stricken are deletions; words underlined are additions.