CS/HB 7083

1
A bill to be entitled
2An act relating to health care fraud and abuse; amending
3s. 400.462, F.S.; revising definitions; amending s.
4400.464, F.S.; authorizing a home infusion therapy
5provider to be licensed as a nurse registry; deleting
6provisions relating to Medicare reimbursement; amending s.
7400.471, F.S.; requiring an applicant for a home health
8agency license to submit to the Agency for Health Care
9Administration a business plan and evidence of contingency
10funding and disclose other controlling ownership interests
11in health care entities; requiring certain standards in
12documentation demonstrating financial ability to operate;
13requiring home health agencies to maintain certain
14accreditation to maintain licensure; permitting certain
15accrediting organizations to submit surveys regarding
16licensure of home health agencies; prohibiting the agency
17from issuing an initial license to a home health agency
18licensure applicant located within 10 miles of a licensed
19home health agency that has common controlling interests;
20prohibiting the transfer of an application to another home
21health agency prior to issuance of the license; requiring
22submission of an initial application to relocate a
23licensed home health agency to another geographic service
24area; amending s. 400.474, F.S.; providing additional
25grounds under which the agency may take disciplinary
26action against a home health agency; providing for a fine;
27creating s. 400.476, F.S.; establishing staffing
28requirements for home health agencies; reducing the number
29of home health agencies that an administrator or director
30of nursing may serve; requiring that an alternate
31administrator be designated in writing; limiting the
32period that a home health agency that provides skilled
33nursing care may operate without a director of nursing;
34requiring notification upon the termination and
35replacement of a director of nursing; requiring the agency
36to take administrative enforcement action against a home
37health agency for noncompliance with the notification and
38staffing requirements for a director of nursing; providing
39for fines; exempting a home health agency that is not
40Medicare or Medicaid certified and does not provide
41skilled care or provides only physical, occupational, or
42speech therapy from requirements related to a director of
43nursing; providing training requirements for certified
44nursing assistants and home health aides; amending s.
45400.484, F.S.; requiring the agency to impose
46administrative fines for certain deficiencies; increasing
47the administrative fines imposed for certain deficiencies;
48amending s. 400.491, F.S.; extending the period that a
49home health agency must retain records of the nonskilled
50care it provides; amending s. 400.497, F.S.; requiring
51that the agency adopt rules related to standards for the
52director of nursing of a home health agency, requirements
53for a director of nursing to submit certified staff
54activity logs pursuant to an agency request, quality
55assurance programs, and inspections related to an
56application for a change in ownership; amending s.
57400.506, F.S.; providing training requirements for
58certified nursing assistants and home health aides
59referred for contract by a nurse registry; amending s,
60409.901, F.S.; defining the term "change of ownership";
61amending s. 409.907, F.S.; revising provisions relating to
62change of ownership of Medicaid provider agreements;
63providing for continuing financial liability of a
64transferor under certain circumstances; defining the term
65"outstanding overpayment"; requiring the transferor to
66provide notice of change of ownership to the agency within
67a specified time period; requiring the transferee to
68submit a Medicaid provider enrollment application to the
69agency; providing for joint and several liability under
70certain circumstances; requiring a written payment plan
71for certain outstanding financial obligations; providing
72conditions under which additional enrollment effective
73dates apply; amending s. 409.910, F.S.; conforming a
74cross-reference; amending s. 409.912, F.S.; requiring the
75agency to limit its network of Medicaid durable medical
76equipment and medical supply providers; prohibiting
77reimbursement for dates of service after January 1, 2009;
78requiring accreditation; requiring direct provision of
79services or supplies; authorizing provider to store
80nebulizers at a physician's office under certain
81circumstances; imposing certain physical location
82requirements; requiring providers to maintain a certain
83stock of equipment and supplies; requiring a surety bond;
84requiring background screening of employees; providing for
85certain exemptions; providing an effective date.
86
87Be It Enacted by the Legislature of the State of Florida:
88
89     Section 1.  Subsections (1), (5), (10), (14), and (25) of
90section 400.462, Florida Statutes, are amended to read:
91     400.462  Definitions.--As used in this part, the term:
92     (1)  "Administrator" means a direct employee, as defined in
93subsection (9), who is. The administrator must be a licensed
94physician, physician assistant, or registered nurse licensed to
95practice in this state or an individual having at least 1 year
96of supervisory or administrative experience in home health care
97or in a facility licensed under chapter 395, under part II of
98this chapter, or under part I of chapter 429. An administrator
99may manage a maximum of five licensed home health agencies
100located within one agency service district or within an
101immediately contiguous county. If the home health agency is
102licensed under this chapter and is part of a retirement
103community that provides multiple levels of care, an employee of
104the retirement community may administer the home health agency
105and up to a maximum of four entities licensed under this chapter
106or chapter 429 that are owned, operated, or managed by the same
107corporate entity. An administrator shall designate, in writing,
108for each licensed entity, a qualified alternate administrator to
109serve during absences.
110     (5)  "Certified nursing assistant" means any person who has
111been issued a certificate under part II of chapter 464. The
112licensed home health agency or licensed nurse registry shall
113ensure that the certified nursing assistant employed by or under
114contract with the home health agency or licensed nurse registry
115is adequately trained to perform the tasks of a home health aide
116in the home setting.
117     (10)  "Director of nursing" means a registered nurse who is
118a direct employee, as defined in subsection (9), of the agency
119and who is a graduate of an approved school of nursing and is
120licensed in this state; who has at least 1 year of supervisory
121experience as a registered nurse; and who is responsible for
122overseeing the professional nursing and home health aid delivery
123of services of the agency. A director of nursing may be the
124director of a maximum of five licensed home health agencies
125operated by a related business entity and located within one
126agency service district or within an immediately contiguous
127county. If the home health agency is licensed under this chapter
128and is part of a retirement community that provides multiple
129levels of care, an employee of the retirement community may
130serve as the director of nursing of the home health agency and
131of up to four entities licensed under this chapter or chapter
132429 which are owned, operated, or managed by the same corporate
133entity.
134     (14)  "Home health aide" means a person who is trained or
135qualified, as provided by rule, and who provides hands-on
136personal care, performs simple procedures as an extension of
137therapy or nursing services, assists in ambulation or exercises,
138or assists in administering medications as permitted in rule and
139for which the person has received training established by the
140agency under s. 400.497(1). The licensed home health agency or
141licensed nurse registry shall ensure that the home health aide
142employed by or under contract with the home health agency or
143licensed nurse registry is adequately trained to perform the
144tasks of a home health aide in the home setting.
145     (25)  "Staffing services" means services provided to a
146health care facility, school, or other business entity on a
147temporary or school-year basis pursuant to a written contract by
148licensed health care personnel and by certified nursing
149assistants and home health heath aides who are employed by, or
150work under the auspices of, a licensed home health agency or who
151are registered with a licensed nurse registry. Staffing services
152may be provided anywhere within the state.
153     Section 2.  Subsection (3) of section 400.464, Florida
154Statutes, is amended to read:
155     400.464  Home health agencies to be licensed; expiration of
156license; exemptions; unlawful acts; penalties.--
157     (3)  A Any home infusion therapy provider must shall be
158licensed as a home health agency or nurse registry. Any infusion
159therapy provider currently authorized to receive Medicare
160reimbursement under a DME - Part B Provider number for the
161provision of infusion therapy shall be licensed as a
162noncertified home health agency. Such a provider shall continue
163to receive that specified Medicare reimbursement without being
164certified so long as the reimbursement is limited to those items
165authorized pursuant to the DME - Part B Provider Agreement and
166the agency is licensed in compliance with the other provisions
167of this part.
168     Section 3.  Paragraphs (d), (e), (f), (g), and (h) are
169added to subsection (2) of section 400.471, Florida Statutes,
170and subsections (7), (8), and (9) are added to that section, to
171read:
172     400.471  Application for license; fee.--
173     (2)  In addition to the requirements of part II of chapter
174408, the initial applicant must file with the application
175satisfactory proof that the home health agency is in compliance
176with this part and applicable rules, including:
177     (d)  A business plan, signed by the applicant, which
178details the home health agency's methods to obtain patients and
179its plan to recruit and maintain staff.
180     (e)  Evidence of contingency funding equal to 1 month's
181average operating expenses during the first year of operation.
182     (f)  A balance sheet, income and expense statement, and
183statement of cash flows for the first 2 years of operation which
184provide evidence of having sufficient assets, credit, and
185projected revenues to cover liabilities and expenses. The
186applicant has demonstrated financial ability to operate if the
187applicant's assets, credit, and projected revenues meet or
188exceed projected liabilities and expenses. An applicant may not
189project an operating margin of 15 percent or greater for any
190month in the first year of operation. All documents required
191under this paragraph must be prepared in accordance with
192generally accepted accounting principles and compiled and signed
193by a certified public accountant.
194     (g)  All other ownership interests in health care entities
195for each controlling interest, as defined in part II of chapter
196408.
197     (h)  In the case of an application for initial licensure,
198documentation of accreditation, or an application for
199accreditation, from an accrediting organization that is
200recognized by the agency as having standards comparable to those
201required by this part and part II of chapter 408.
202Notwithstanding s. 408.806, an applicant that has applied for
203accreditation must provided proof of accreditation that is not
204conditional or provisional within 120 days after the date of the
205agency's receipt of the application for licensure or the
206application shall be withdrawn from further consideration. Such
207accreditation must be maintained by the home health agency to
208maintain licensure. The agency shall accept, in lieu of its own
209periodic licensure survey, the submission of the survey of an
210accrediting organization that is recognized by the agency if the
211accreditation of the licensed home health agency is not
212provisional and if the licensed home health agency authorizes
213releases of, and the agency receives the report of, the
214accrediting organization.
215     (7)  The agency may not issue an initial license to a home
216health agency licensure applicant if the applicant shares common
217controlling interests with another licensed home health agency
218that is located within 10 miles of the applicant and is in the
219same county. The agency must return the application and fees to
220the applicant.
221     (8)  An application for a home health agency license may
222not be transferred to another home health agency or controlling
223interest prior to issuance of the license.
224     (9)  A licensed home health agency that seeks to relocate
225to a different geographic service area not listed on its license
226must submit an initial application for a home health agency
227license for the new location.
228     Section 4.  Section 400.474, Florida Statutes, is amended
229to read:
230     400.474  Administrative penalties.--
231     (1)(a)  The agency may deny, revoke, and suspend a license
232and impose an administrative fine in the manner provided in
233chapter 120.
234     (b)  The agency shall impose a fine of $1,000 against a
235home health agency that demonstrates a pattern of falsifying:
236     1.  Documents of training for home health aides or
237certified nursing assistants; or
238     2.  Health statements for staff providing direct care to
239patients.
240
241A pattern may be demonstrated by a showing of at least three
242fraudulent entries or documents. The fine shall be imposed for
243each fraudulent document or, if multiple staff members are
244included on one document, for each fraudulent entry on the
245document.
246     (2)  Any of the following actions by a home health agency
247or its employee is grounds for disciplinary action by the
248agency:
249     (a)  Violation of this part, part II of chapter 408, or of
250applicable rules.
251     (b)  An intentional, reckless, or negligent act that
252materially affects the health or safety of a patient.
253     (c)  Knowingly providing home health services in an
254unlicensed assisted living facility or unlicensed adult family-
255care home, unless the home health agency or employee reports the
256unlicensed facility or home to the agency within 72 hours after
257providing the services.
258     (d)  Preparing or maintaining fraudulent patient records,
259such as, but not limited to, charting ahead, recording vital
260signs or symptoms that were not personally obtained or observed
261by the home health agency's staff at the time indicated,
262borrowing patients or patient records from other home health
263agencies to pass a survey or inspection, or falsifying
264signatures.
265     (e)  Failing to provide at least one service directly to a
266patient for a period of 60 days.
267     (3)(a)  In addition to the requirements of s. 408.813, any
268person, partnership, or corporation that violates s. 408.813 and
269that previously operated a licensed home health agency or
270concurrently operates both a licensed home health agency and an
271unlicensed home health agency commits a felony of the third
272degree punishable as provided in s. 775.082, s. 775.083, or s.
273775.084.
274     (b)  If any home health agency is found to be operating
275without a license and that home health agency has received any
276government reimbursement for services, the agency shall make a
277fraud referral to the appropriate government reimbursement
278program.
279     Section 5.  Section 400.476, Florida Statutes, is created
280to read:
281     400.476  Staffing requirements; notifications; limitations
282on staffing services.--
283     (1)  ADMINISTRATOR.--
284     (a)  An administrator may manage only one home health
285agency, except that an administrator may manage up to five home
286health agencies if all five home health agencies have identical
287controlling interests as defined in s. 408.803 and are located
288within one agency geographic service area or within an
289immediately contiguous county. If the home health agency is
290licensed under this chapter and is part of a retirement
291community that provides multiple levels of care, an employee of
292the retirement community may administer the home health agency
293and up to a maximum of four entities licensed under this chapter
294or chapter 429 which all have identical controlling interests as
295defined in s. 408.803. An administrator shall designate, in
296writing, for each licensed entity, a qualified alternate
297administrator to serve during the administrator's absence.
298     (b)  An administrator of a home health agency who is a
299licensed physician, physician assistant, or registered nurse
300licensed to practice in this state may also be the director of
301nursing for a home health agency. An administrator may serve as
302a director of nursing for up to the number of entities
303authorized in subsection (2) only if there are 10 or fewer full-
304time equivalent employees and contracted personnel in each home
305health agency.
306     (2)  DIRECTOR OF NURSING.--
307     (a)  A director of nursing may be the director of nursing
308for:
309     1.  Up to two licensed home health agencies if the agencies
310have identical controlling interests as defined in s. 408.803
311and are located within one agency geographic service area or
312within an immediately contiguous county; or
313     2.  Up to five licensed home health agencies if:
314     a.  All of the home health agencies have identical
315controlling interests as defined in s. 408.803;
316     b.  All of the home health agencies are located within one
317agency geographic service area or within an immediately
318contiguous county; and
319     c.  Each home health agency has a registered nurse who
320meets the qualifications of a director of nursing and who has a
321written delegation from the director of nursing to serve as the
322director of nursing for that home health agency when the
323director of nursing is not present.
324
325If a home health agency licensed under this chapter is part of a
326retirement community that provides multiple levels of care, an
327employee of the retirement community may serve as the director
328of nursing of the home health agency and up to a maximum of four
329entities, other than home health agencies, licensed under this
330chapter or chapter 429 which all have identical controlling
331interests as defined in s. 408.803.
332     (b)  A home health agency that provides skilled nursing
333care may not operate for more than 30 calendar days without a
334director of nursing. A home health agency that provides skilled
335nursing care and the director of nursing of the home health
336agency must notify the agency within 10 business days after
337termination of the services of the director of nursing for the
338home health agency. A home health agency that provides skilled
339nursing care must notify the agency of the identity and
340qualifications of the new director of nursing within 10 days
341after the new director is hired. If a home health agency that
342provides skilled nursing care operates for more than 30 calendar
343days without a director of nursing, the home health agency
344commits a class II deficiency. In addition to the fine for a
345class II deficiency, the agency may issue a moratorium in
346accordance with s. 408.814 or revoke the license. The agency
347shall fine a home health agency that fails to notify the agency
348as required in this paragraph $1,000 for the first violation and
349$2,000 for a repeat violation. The agency may not take
350administrative action against a home health agency if the
351director of nursing fails to notify the department upon
352termination of services as the director of nursing for the home
353health agency.
354     (c)  A home health agency that is not Medicare or Medicaid
355certified and does not provide skilled care or provides only
356physical, occupational, or speech therapy is not required to
357have a director of nursing and is exempt from paragraph (b).
358     (3)  TRAINING.--A home health agency shall ensure that each
359certified nursing assistant employed by or under contract with
360the home health agency and each home health aide employed by or
361under contract with the home health agency is adequately trained
362to perform the tasks of a home health aide in the home setting.
363     (4)  STAFFING.--Staffing services may be provided anywhere
364within the state.
365     Section 6.  Section 400.484, Florida Statutes, is amended
366to read:
367     400.484  Right of inspection; deficiencies; fines.--
368     (1)  In addition to the requirements of s. 408.811, the
369agency may make such inspections and investigations as are
370necessary in order to determine the state of compliance with
371this part, part II of chapter 408, and applicable rules.
372     (2)  The agency shall impose fines for various classes of
373deficiencies in accordance with the following schedule:
374     (a)  A class I deficiency is any act, omission, or practice
375that results in a patient's death, disablement, or permanent
376injury, or places a patient at imminent risk of death,
377disablement, or permanent injury. Upon finding a class I
378deficiency, the agency shall may impose an administrative fine
379in the amount of $15,000 $5,000 for each occurrence and each day
380that the deficiency exists.
381     (b)  A class II deficiency is any act, omission, or
382practice that has a direct adverse effect on the health, safety,
383or security of a patient. Upon finding a class II deficiency,
384the agency shall may impose an administrative fine in the amount
385of $5,000 $1,000 for each occurrence and each day that the
386deficiency exists.
387     (c)  A class III deficiency is any act, omission, or
388practice that has an indirect, adverse effect on the health,
389safety, or security of a patient. Upon finding an uncorrected or
390repeated class III deficiency, the agency shall may impose an
391administrative fine not to exceed $1,000 $500 for each
392occurrence and each day that the uncorrected or repeated
393deficiency exists.
394     (d)  A class IV deficiency is any act, omission, or
395practice related to required reports, forms, or documents which
396does not have the potential of negatively affecting patients.
397These violations are of a type that the agency determines do not
398threaten the health, safety, or security of patients. Upon
399finding an uncorrected or repeated class IV deficiency, the
400agency shall may impose an administrative fine not to exceed
401$500 $200 for each occurrence and each day that the uncorrected
402or repeated deficiency exists.
403     (3)  In addition to any other penalties imposed pursuant to
404this section or part, the agency may assess costs related to an
405investigation that results in a successful prosecution,
406excluding costs associated with an attorney's time.
407     Section 7.  Subsection (2) of section 400.491, Florida
408Statutes, is amended to read:
409     400.491  Clinical records.--
410     (2)  The home health agency must maintain for each client
411who receives nonskilled care a service provision plan. Such
412records must be maintained by the home health agency for 3 years
4131 year following termination of services.
414     Section 8.  Subsections (5), (6), (7), and (8) of section
415400.497, Florida Statutes, are renumbered as subsections (7),
416(8), (9), and (10), respectively, and new subsections (5) and
417(6) are added to that section to read:
418     400.497  Rules establishing minimum standards.--The agency
419shall adopt, publish, and enforce rules to implement part II of
420chapter 408 and this part, including, as applicable, ss. 400.506
421and 400.509, which must provide reasonable and fair minimum
422standards relating to:
423     (5)  Oversight by the director of nursing. The agency shall
424develop rules related to:
425     (a)  Standards that address oversight responsibilities by
426the director of nursing of skilled nursing and personal care
427services provided by the home health agency's staff;
428     (b)  Requirements for a director of nursing to provide to
429the agency, upon request, a certified daily report of the home
430health services provided by a specified direct employee or
431contracted staff member on behalf of the home health agency. The
432agency may request a certified daily report only for a period
433not to exceed 2 years prior to the date of the request; and
434     (c)  A quality assurance program for home health services
435provided by the home health agency.
436     (6)  Conditions for using a recent unannounced licensure
437inspection for the inspection required in s. 408.806 related to
438a licensure application associated with a change in ownership of
439a licensed home health agency.
440     Section 9.  Paragraph (a) of subsection (6) of section
441400.506, Florida Statutes, is amended to read:
442     400.506  Licensure of nurse registries; requirements;
443penalties.--
444     (6)(a)  A nurse registry may refer for contract in private
445residences registered nurses and licensed practical nurses
446registered and licensed under part I of chapter 464, certified
447nursing assistants certified under part II of chapter 464, home
448health aides who present documented proof of successful
449completion of the training required by rule of the agency, and
450companions or homemakers for the purposes of providing those
451services authorized under s. 400.509(1). A licensed nurse
452registry shall ensure that each certified nursing assistant
453referred for contract by the nurse registry and each home health
454aide referred for contract by the nurse registry is adequately
455trained to perform the tasks of a home health aide in the home
456setting. Each person referred by a nurse registry must provide
457current documentation that he or she is free from communicable
458diseases.
459     Section 10.  Subsections (5) through (27) of section
460409.901, Florida Statutes, are renumbered as subsections (6)
461through (28), respectively, and a new subsection (5) is added to
462that section to read:
463     409.901  Definitions; ss. 409.901-409.920.--As used in ss.
464409.901-409.920, except as otherwise specifically provided, the
465term:
466     (5)  "Change of ownership" means an event in which the
467provider changes to a different legal entity or in which 45
468percent or more of the ownership, voting shares, or controlling
469interest in a corporation whose shares are not publicly traded
470on a recognized stock exchange is transferred or assigned,
471including the final transfer or assignment of multiple transfers
472or assignments over a 2-year period that cumulatively total 45
473percent or greater. A change solely in the management company or
474board of directors is not a change of ownership.
475     Section 11.  Subsections (6) and (9) of section 409.907,
476Florida Statutes, are amended to read:
477     409.907  Medicaid provider agreements.--The agency may make
478payments for medical assistance and related services rendered to
479Medicaid recipients only to an individual or entity who has a
480provider agreement in effect with the agency, who is performing
481services or supplying goods in accordance with federal, state,
482and local law, and who agrees that no person shall, on the
483grounds of handicap, race, color, or national origin, or for any
484other reason, be subjected to discrimination under any program
485or activity for which the provider receives payment from the
486agency.
487     (6)  A Medicaid provider agreement may be revoked, at the
488option of the agency, as the result of a change of ownership of
489any facility, association, partnership, or other entity named as
490the provider in the provider agreement. A provider shall give
491the agency 60 days' notice before making any change in ownership
492of the entity named in the provider agreement as the provider.
493     (a)  In the event of a change of ownership, the transferor
494shall remain liable for all outstanding overpayments,
495administrative fines, and any other moneys owed to the agency
496prior to the effective date of the change of ownership. In
497addition to the continuing liability of the transferor, the
498transferee shall be liable to the agency for all outstanding
499overpayments identified by the agency on or before the effective
500date of the change of ownership. For purposes of this
501subsection, the term "outstanding overpayment" includes any
502amount identified in a preliminary audit report issued to the
503transferor by the agency on or before the effective date of the
504change of ownership. In the event of a change of ownership for a
505skilled nursing facility or intermediate care facility, the
506Medicaid provider agreement shall be assigned to the transferee
507if the transferee meets all other Medicaid provider
508qualifications. In the event of a change of ownership involving
509a skilled nursing facility licensed under part II of chapter
510400, liability for all outstanding overpayments, administrative
511fines, and any moneys owed to the agency prior to the effective
512date of the change of ownership shall be determined in
513accordance with the provisions of s. 400.179.
514     (b)  At least 60 days prior to the anticipated date of the
515change of ownership, the transferor shall notify the agency of
516the intended change of ownership and the transferee shall submit
517to the agency a Medicaid provider enrollment application. In the
518event a change of ownership occurs without compliance with the
519notice requirements of this subsection, the transferor and
520transferee shall be jointly and severally liable for all
521overpayments, administrative fines, and other moneys due to the
522agency, regardless of whether the agency identified the
523overpayments, administrative fines, or other moneys before or
524after the effective date of the change of ownership. The agency
525shall not approve a transferee's Medicaid provider enrollment
526application if the transferee or transferor has not paid or
527agreed in writing to a payment plan for all outstanding
528overpayments, administrative fines, and other moneys due to the
529agency. This subsection does not preclude the agency from
530seeking any other legal or equitable remedies available to the
531agency for the recovery of moneys owed to the Medicaid program.
532In the event of a change of ownership involving a skilled
533nursing facility licensed under part II of chapter 400,
534liability for all outstanding overpayments, administrative
535fines, and any moneys owed to the agency prior to the effective
536date of the change of ownership shall be determined in
537accordance with the provisions of s. 400.179 if the Medicaid
538provider enrollment application for change of ownership is
539submitted prior to the change of ownership.
540     (9)  Upon receipt of a completed, signed, and dated
541application, and completion of any necessary background
542investigation and criminal history record check, the agency must
543either:
544     (a)  Enroll the applicant as a Medicaid provider upon
545approval of the provider application. The enrollment effective
546date shall be the date the agency receives the provider
547application. With respect to a provider that requires a Medicare
548certification survey, the enrollment effective date shall be the
549date the certification is awarded. With respect to a provider
550that completes a change of ownership, the effective date shall
551be the date the agency received the application, the date the
552change of ownership was complete, or the date the applicant
553became eligible to provide services under Medicaid, whichever
554date is later. With respect to a provider of emergency medical
555services transportation or emergency services and care, the
556effective date is the date the services were rendered. Payment
557for any claims for services provided to Medicaid recipients
558between the date of receipt of the application and the date of
559approval is contingent on applying any and all applicable audits
560and edits contained in the agency's claims adjudication and
561payment processing systems; or
562     (b)  Deny the application if the agency finds that it is in
563the best interest of the Medicaid program to do so. The agency
564may consider the factors listed in subsection (10), as well as
565any other factor that could affect the effective and efficient
566administration of the program, including, but not limited to,
567the applicant's demonstrated ability to provide services,
568conduct business, and operate a financially viable concern; the
569current availability of medical care, services, or supplies to
570recipients, taking into account geographic location and
571reasonable travel time; the number of providers of the same type
572already enrolled in the same geographic area; and the
573credentials, experience, success, and patient outcomes of the
574provider for the services that it is making application to
575provide in the Medicaid program. The agency shall deny the
576application if the agency finds that a provider; any officer,
577director, agent, managing employee, or affiliated person; or any
578partner or shareholder having an ownership interest equal to 5
579percent or greater in the provider if the provider is a
580corporation, partnership, or other business entity, has failed
581to pay all outstanding fines or overpayments assessed by final
582order of the agency or final order of the Centers for Medicare
583and Medicaid Services, not subject to further appeal, unless the
584provider agrees to a repayment plan that includes withholding
585Medicaid reimbursement until the amount due is paid in full.
586     Section 12.  Subsection (20) of section 409.910, Florida
587Statutes, is amended to read:
588     409.910  Responsibility for payments on behalf of Medicaid-
589eligible persons when other parties are liable.--
590     (20)  Entities providing health insurance as defined in s.
591624.603, health maintenance organizations and prepaid health
592clinics as defined in chapter 641, and, on behalf of their
593clients, third-party administrators and pharmacy benefits
594managers as defined in s. 409.901(27)(26) shall provide such
595records and information as are necessary to accomplish the
596purpose of this section, unless such requirement results in an
597unreasonable burden.
598     (a)  The director of the agency and the Director of the
599Office of Insurance Regulation of the Financial Services
600Commission shall enter into a cooperative agreement for
601requesting and obtaining information necessary to effect the
602purpose and objective of this section.
603     1.  The agency shall request only that information
604necessary to determine whether health insurance as defined
605pursuant to s. 624.603, or those health services provided
606pursuant to chapter 641, could be, should be, or have been
607claimed and paid with respect to items of medical care and
608services furnished to any person eligible for services under
609this section.
610     2.  All information obtained pursuant to subparagraph 1. is
611confidential and exempt from s. 119.07(1).
612     3.  The cooperative agreement or rules adopted under this
613subsection may include financial arrangements to reimburse the
614reporting entities for reasonable costs or a portion thereof
615incurred in furnishing the requested information. Neither the
616cooperative agreement nor the rules shall require the automation
617of manual processes to provide the requested information.
618     (b)  The agency and the Financial Services Commission
619jointly shall adopt rules for the development and administration
620of the cooperative agreement. The rules shall include the
621following:
622     1.  A method for identifying those entities subject to
623furnishing information under the cooperative agreement.
624     2.  A method for furnishing requested information.
625     3.  Procedures for requesting exemption from the
626cooperative agreement based on an unreasonable burden to the
627reporting entity.
628     Section 13.  Subsection (48) of section 409.912, Florida
629Statutes, is amended to read:
630     409.912  Cost-effective purchasing of health care.--The
631agency shall purchase goods and services for Medicaid recipients
632in the most cost-effective manner consistent with the delivery
633of quality medical care. To ensure that medical services are
634effectively utilized, the agency may, in any case, require a
635confirmation or second physician's opinion of the correct
636diagnosis for purposes of authorizing future services under the
637Medicaid program. This section does not restrict access to
638emergency services or poststabilization care services as defined
639in 42 C.F.R. part 438.114. Such confirmation or second opinion
640shall be rendered in a manner approved by the agency. The agency
641shall maximize the use of prepaid per capita and prepaid
642aggregate fixed-sum basis services when appropriate and other
643alternative service delivery and reimbursement methodologies,
644including competitive bidding pursuant to s. 287.057, designed
645to facilitate the cost-effective purchase of a case-managed
646continuum of care. The agency shall also require providers to
647minimize the exposure of recipients to the need for acute
648inpatient, custodial, and other institutional care and the
649inappropriate or unnecessary use of high-cost services. The
650agency shall contract with a vendor to monitor and evaluate the
651clinical practice patterns of providers in order to identify
652trends that are outside the normal practice patterns of a
653provider's professional peers or the national guidelines of a
654provider's professional association. The vendor must be able to
655provide information and counseling to a provider whose practice
656patterns are outside the norms, in consultation with the agency,
657to improve patient care and reduce inappropriate utilization.
658The agency may mandate prior authorization, drug therapy
659management, or disease management participation for certain
660populations of Medicaid beneficiaries, certain drug classes, or
661particular drugs to prevent fraud, abuse, overuse, and possible
662dangerous drug interactions. The Pharmaceutical and Therapeutics
663Committee shall make recommendations to the agency on drugs for
664which prior authorization is required. The agency shall inform
665the Pharmaceutical and Therapeutics Committee of its decisions
666regarding drugs subject to prior authorization. The agency is
667authorized to limit the entities it contracts with or enrolls as
668Medicaid providers by developing a provider network through
669provider credentialing. The agency may competitively bid single-
670source-provider contracts if procurement of goods or services
671results in demonstrated cost savings to the state without
672limiting access to care. The agency may limit its network based
673on the assessment of beneficiary access to care, provider
674availability, provider quality standards, time and distance
675standards for access to care, the cultural competence of the
676provider network, demographic characteristics of Medicaid
677beneficiaries, practice and provider-to-beneficiary standards,
678appointment wait times, beneficiary use of services, provider
679turnover, provider profiling, provider licensure history,
680previous program integrity investigations and findings, peer
681review, provider Medicaid policy and billing compliance records,
682clinical and medical record audits, and other factors. Providers
683shall not be entitled to enrollment in the Medicaid provider
684network. The agency shall determine instances in which allowing
685Medicaid beneficiaries to purchase durable medical equipment and
686other goods is less expensive to the Medicaid program than long-
687term rental of the equipment or goods. The agency may establish
688rules to facilitate purchases in lieu of long-term rentals in
689order to protect against fraud and abuse in the Medicaid program
690as defined in s. 409.913. The agency may seek federal waivers
691necessary to administer these policies.
692     (48)(a)  A provider is not entitled to enrollment in the
693Medicaid provider network. The agency may implement a Medicaid
694fee-for-service provider network controls, including, but not
695limited to, competitive procurement and provider credentialing.
696If a credentialing process is used, the agency may limit its
697provider network based upon the following considerations:
698beneficiary access to care, provider availability, provider
699quality standards and quality assurance processes, cultural
700competency, demographic characteristics of beneficiaries,
701practice standards, service wait times, provider turnover,
702provider licensure and accreditation history, program integrity
703history, peer review, Medicaid policy and billing compliance
704records, clinical and medical record audit findings, and such
705other areas that are considered necessary by the agency to
706ensure the integrity of the program.
707     (b)  The agency shall limit its network of durable medical
708equipment and medical supply providers. For dates of service
709after January 1, 2009, the agency shall limit payment for
710durable medical equipment and supplies to providers that meet
711all the requirements of this paragraph.
712     1.  Providers must be accredited by a Centers for Medicare
713and Medicaid Services Deemed Accreditation Organization for
714suppliers of durable medical equipment, prosthetics, orthotics,
715and supplies. The provider must maintain accreditation and shall
716be subject to unannounced reviews by the accrediting
717organization.
718     2.  Providers must provide the services or supplies
719directly to the Medicaid recipient or caregiver at the provider
720location or recipient's residence or send the supplies directly
721to the recipient's residence with receipt of mailed delivery.
722Subcontracting or consignment of the service or supply to a
723third party is prohibited.
724     3.  Notwithstanding subparagraph 2., a durable medical
725equipment provider may store nebulizers at a physician's office
726for the purpose of having the physician's staff issue the
727equipment if it meets all of the following conditions:
728     a.  The physician must document the medical necessity and
729need to prevent further deterioration of the patient's
730respiratory status by the timely delivery of the nebulizer in
731the physician's office.
732     b.  The durable medical equipment provider must have
733written documentation of the competency and training by a
734Florida-licensed registered respiratory therapist of any durable
735medical equipment staff who participates in the training of
736physician office staff for the use of nebulizers, including
737cleaning, warranty, and special needs of patients.
738     c.  The physician's office must have documented the
739training and competency of any staff member who initiates the
740delivery of nebulizers to patients. The durable medical
741equipment provider must maintain copies of all physician office
742training.
743     d.  The physician's office must maintain inventory records
744of stored nebulizers, including documentation of the durable
745medical equipment provider source.
746     e.  A physician contracted with a Medicaid durable medical
747equipment provider may not have a financial relationship with
748that provider or receive any financial gain from the delivery of
749nebulizers to patients.
750     4.  Providers must have a physical business location and a
751functional landline business phone. The location shall be within
752the state of Florida or no more than fifty miles from the
753Florida state line. The agency may make exceptions for providers
754of durable medical equipment or supplies not otherwise available
755from other enrolled providers located within the state.
756     5.  Physical business locations must be clearly identified
757as a business that furnishes durable medical equipment or
758medical supplies by signage which can be read from 20 feet away.
759The location must be readily accessible to the public during
760normal, scheduled, posted business hours and must operate no
761less than five hours per day and no less than five days per
762week, with the exception of scheduled and posted holidays. The
763location shall not be located within or at the same numbered
764street address as another enrolled Medicaid durable medical
765equipment or medical supply provider or as an enrolled Medicaid
766pharmacy that is also enrolled as a durable medical equipment
767provider. A licensed orthotist or prothestist that provides only
768orthotic or prosthetic devices as a Medicaid durable medical
769equipment provider is exempt from the provisions in this
770paragraph.
771     6. Providers must maintain a stock of durable medical
772equipment and medical supplies on site that is readily available
773to meet the needs of the durable medical equipment business
774location's customers.
775     7. Providers must provide a surety bond of $50,000 for each
776provider location, up to a maximum of five bonds statewide or an
777aggregate bond of $250,000 statewide, as identified by Federal
778Employer Identification Number. Providers who post a statewide
779or an aggregate bond must identify all of their locations in any
780Medicaid durable medical equipment and medical supply provider
781enrollment application or bond renewal. Each provider location's
782surety bond must be renewed annually, and the provider must
783submit proof of renewal even if the original bond is a
784continuous bond. A licensed orthotist or prothestist that
785provides only orthotic or prosthetic devices as a Medicaid
786durable medical equipment provider is exempt from the provisions
787in this paragraph.
788     8.  Providers must obtain a level 2 background screening,
789as provided under s. 435.04, for each provider employee in
790direct contact with or providing direct services to recipients
791of durable medical equipment and medical supplies in their
792homes. This requirement includes, but is not limited to, repair
793and service technicians, fitters, and delivery staff. The cost
794of the background screening shall be borne by the provider.
795     9.  The following providers are exempt from the
796requirements of subparagraphs 1. and 6.:
797     a.  Durable medical equipment providers owned and operated
798by a government entity.
799     b.  Durable medical equipment providers that are operating
800within a pharmacy that is currently enrolled as a Medicaid
801pharmacy provider.
802     c.  Active, Medicaid-enrolled orthopedic physician groups,
803primarily owned by physicians, that provide only orthotic and
804prosthetic devices.
805     Section 14.  This act shall take effect July 1, 2008.


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