Florida Senate - 2009 SENATOR AMENDMENT
Bill No. CS for CS for CS for SB 1986
Barcode 868070
LEGISLATIVE ACTION
Senate . House
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Floor: 1/AD/2R .
04/23/2009 05:18 PM .
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Senator Gaetz moved the following:
1 Senate Amendment (with directory and title amendments)
2
3 Delete lines 411 - 715
4 and insert:
5 interest has been administratively sanctioned by the agency
6 during the two years prior to the submission of the licensure
7 renewal application for one or more of the following acts:
8 (a) An intentional or negligent act that materially affects
9 the health or safety of a client of the provider;
10 (b) Knowingly providing home health services in an
11 unlicensed assisted living facility or unlicensed adult family
12 care home, unless the home health agency or employee reports the
13 unlicensed facility or home to the agency within 72 hours after
14 providing the services;
15 (c) Preparing or maintaining fraudulent patient records,
16 such as, but not limited to, charting ahead, recording vital
17 signs or symptoms which were not personally obtained or observed
18 by the home health agency’s staff at the time indicated,
19 borrowing patients or patient records from other home health
20 agencies to pass a survey or inspection, or falsifying
21 signatures;
22 (d) Failing to provide at least one service directly to a
23 patient for a period of 60 days;
24 (e) Demonstrating a pattern of falsifying documents
25 relating to the training of home health aides or certified
26 nursing assistants or demonstrating a pattern of falsifying
27 health statements for staff who provide direct care to patients.
28 A pattern may be demonstrated by a showing of at least three
29 fraudulent entries or documents;
30 (f) Demonstrating a pattern of billing any payor for
31 services not provided. A pattern may be demonstrated by a
32 showing of at least three billings for services not provided
33 within a 12-month period;
34 (g) Demonstrating a pattern of failing to provide a service
35 specified in the home health agency’s written agreement with a
36 patient or the patient’s legal representative, or the plan of
37 care for that patient, unless a reduction in service is mandated
38 by Medicare, Medicaid, or a state program or as provided in s.
39 400.492(3). A pattern may be demonstrated by a showing of at
40 least three incidents, regardless of the patient or service, in
41 which the home health agency did not provide a service specified
42 in a written agreement or plan of care during a 3-month period;
43 (h) Giving remuneration to a case manager, discharge
44 planner, facility-based staff member, or third-party vendor who
45 is involved in the discharge planning process of a facility
46 licensed under chapter 395, chapter 429, or this chapter from
47 whom the home health agency receives referrals or gives
48 remuneration as prohibited in s. 400.474(6)(a);
49 (i) Giving cash, or its equivalent, to a Medicare or
50 Medicaid beneficiary;
51 (j) Demonstrating a pattern of billing the Medicaid program
52 for services to Medicaid recipients which are medically
53 unnecessary as determined by a final order. A pattern may be
54 demonstrated by a showing of at least two such medically
55 unnecessary services within one Medicaid program integrity audit
56 period;
57 (k) Providing services to residents in an assisted living
58 facility for which the home health agency does not receive fair
59 market value remuneration; or
60 (l) Providing staffing to an assisted living facility for
61 which the home health agency does not receive fair market value
62 remuneration.
63 (11) The agency may not issue an initial or change of
64 ownership license to a home health agency under part III of
65 chapter 400 or this part for the purpose of opening a new home
66 health agency until July 1, 2010, in any county that has at
67 least one actively licensed home health agency and a population
68 of persons 65 years of age or older, as indicated in the most
69 recent population estimates published by the Executive Office of
70 the Governor, of fewer than 1,200 per home health agency. In
71 such counties, for any application received by the agency prior
72 to July 1, 2009, which has been deemed by the agency to be
73 complete except for proof of accreditation, the agency may issue
74 an initial or a change of ownership license only if the
75 applicant has applied for accreditation before May 1, 2009, from
76 an accrediting organization that is recognized by the agency.
77 Section 5. Subsection (6) of section 400.474, Florida
78 Statutes, is amended to read:
79 400.474 Administrative penalties.—
80 (6) The agency may deny, revoke, or suspend the license of
81 a home health agency and shall impose a fine of $5,000 against a
82 home health agency that:
83 (a) Gives remuneration for staffing services to:
84 1. Another home health agency with which it has formal or
85 informal patient-referral transactions or arrangements; or
86 2. A health services pool with which it has formal or
87 informal patient-referral transactions or arrangements,
88
89 unless the home health agency has activated its comprehensive
90 emergency management plan in accordance with s. 400.492. This
91 paragraph does not apply to a Medicare-certified home health
92 agency that provides fair market value remuneration for staffing
93 services to a non-Medicare-certified home health agency that is
94 part of a continuing care facility licensed under chapter 651
95 for providing services to its own residents if each resident
96 receiving home health services pursuant to this arrangement
97 attests in writing that he or she made a decision without
98 influence from staff of the facility to select, from a list of
99 Medicare-certified home health agencies provided by the
100 facility, that Medicare-certified home health agency to provide
101 the services.
102 (b) Provides services to residents in an assisted living
103 facility for which the home health agency does not receive fair
104 market value remuneration.
105 (c) Provides staffing to an assisted living facility for
106 which the home health agency does not receive fair market value
107 remuneration.
108 (d) Fails to provide the agency, upon request, with copies
109 of all contracts with assisted living facilities which were
110 executed within 5 years before the request.
111 (e) Gives remuneration to a case manager, discharge
112 planner, facility-based staff member, or third-party vendor who
113 is involved in the discharge planning process of a facility
114 licensed under chapter 395, chapter 429, or this chapter from
115 whom the home health agency receives referrals.
116 (f) Fails to submit to the agency, within 15 days after the
117 end of each calendar quarter, a written report that includes the
118 following data based on data as it existed on the last day of
119 the quarter:
120 1. The number of insulin-dependent diabetic patients
121 receiving insulin-injection services from the home health
122 agency;
123 2. The number of patients receiving both home health
124 services from the home health agency and hospice services;
125 3. The number of patients receiving home health services
126 from that home health agency; and
127 4. The names and license numbers of nurses whose primary
128 job responsibility is to provide home health services to
129 patients and who received remuneration from the home health
130 agency in excess of $25,000 during the calendar quarter.
131 (g) Gives cash, or its equivalent, to a Medicare or
132 Medicaid beneficiary.
133 (h) Has more than one medical director contract in effect
134 at one time or more than one medical director contract and one
135 contract with a physician-specialist whose services are mandated
136 for the home health agency in order to qualify to participate in
137 a federal or state health care program at one time.
138 (i) Gives remuneration to a physician without a medical
139 director contract being in effect. The contract must:
140 1. Be in writing and signed by both parties;
141 2. Provide for remuneration that is at fair market value
142 for an hourly rate, which must be supported by invoices
143 submitted by the medical director describing the work performed,
144 the dates on which that work was performed, and the duration of
145 that work; and
146 3. Be for a term of at least 1 year.
147
148 The hourly rate specified in the contract may not be increased
149 during the term of the contract. The home health agency may not
150 execute a subsequent contract with that physician which has an
151 increased hourly rate and covers any portion of the term that
152 was in the original contract.
153 (j) Gives remuneration to:
154 1. A physician, and the home health agency is in violation
155 of paragraph (h) or paragraph (i);
156 2. A member of the physician’s office staff; or
157 3. An immediate family member of the physician,
158
159 if the home health agency has received a patient referral in the
160 preceding 12 months from that physician or physician’s office
161 staff.
162 (k) Fails to provide to the agency, upon request, copies of
163 all contracts with a medical director which were executed within
164 5 years before the request.
165 (l) Demonstrates a pattern of billing the Medicaid program
166 for services to Medicaid recipients which are medically
167 unnecessary as determined by a final order. A pattern may be
168 demonstrated by a showing of at least two such medically
169 unnecessary services within one Medicaid program integrity audit
170 period.
171
172 Nothing in paragraph (e) or paragraph (j) shall be
173 interpreted as applying to or precluding any discount,
174 compensation, waiver of payment, or payment practice permitted
175 by 52 U.S.C. s. 1320a-7(b) or regulations adopted thereunder,
176 including 42 C.F.R. s. 1001.952, or 42 U.S.C. s. 1395nn or
177 regulations adopted thereunder.
178 Section 6. Section 408.8065, Florida Statutes, is created
179 to read:
180 408.8065 Additional licensure requirements for home health
181 agencies, home medical equipment providers, and health care
182 clinics.—
183 (1) An applicant for initial licensure, or initial
184 licensure due to a change of ownership, as a home health agency,
185 home medical equipment provider, or health care clinic shall:
186 (a) Demonstrate financial ability to operate, as required
187 under s. 408.810(8) and this section. If the applicant’s assets,
188 credit, and projected revenues meet or exceed projected
189 liabilities and expenses, and the applicant provides independent
190 evidence that the funds necessary for startup costs, working
191 capital, and contingency financing exist and will be available
192 as needed, the applicant has demonstrated the financial ability
193 to operate.
194 (b) Submit pro forma financial statements, including a
195 balance sheet, income and expense statement, and a statement of
196 cash flows for the first 2 years of operation which provide
197 evidence that the applicant has sufficient assets, credit, and
198 projected revenues to cover liabilities and expenses.
199 (c) Submit a statement of the applicant’s estimated startup
200 costs and sources of funds through the break-even point in
201 operations demonstrating that the applicant has the ability to
202 fund all startup costs, working capital, and contingency
203 financing. The statement must show that the applicant has at a
204 minimum 3 months of average projected expenses to cover startup
205 costs, working capital, and contingency financing. The minimum
206 amount for contingency funding may not be less than 1 month of
207 average projected expenses.
208
209 All documents required under this subsection must be prepared in
210 accordance with generally accepted accounting principles and may
211 be in a compilation form. The financial statements must be
212 signed by a certified public accountant.
213 (2) For initial, renewal, or change of ownership licenses
214 for a home health agency, a home medical equipment provider, or
215 a health care clinic, applicants and controlling interests who
216 are nonimmigrant aliens, as described in 8 U.S.C. s. 1101, must
217 file a surety bond of at least $500,000, payable to the agency,
218 which guarantees that the home health agency, home medical
219 equipment provider, or health care clinic will act in full
220 conformity with all legal requirements for operation.
221 (3) In addition to the requirements of s. 408.812, any
222 person who offers services that require licensure under part VII
223 or part X of chapter 400, or who offers skilled services that
224 require licensure under part III of chapter 400, without
225 obtaining a valid license; any person who knowingly files a
226 false or or misleading license or license renewal application or
227 who submits false or misleading information related to such
228 application, and any person who violates or conspires to violate
229 this section, commits a felony of the third degree, punishable
230 as provided in s. 775.082, s. 775.083, or s. 775.084.
231 Section 7. Subsection (3) and paragraph (a) of subsection
232 (5) of section 408.810, Florida Statutes, are amended to read:
233 408.810 Minimum licensure requirements.—In addition to the
234 licensure requirements specified in this part, authorizing
235 statutes, and applicable rules, each applicant and licensee must
236 comply with the requirements of this section in order to obtain
237 and maintain a license.
238 (3) Unless otherwise specified in this part, authorizing
239 statutes, or applicable rules, any information required to be
240 reported to the agency must be submitted within 21 calendar days
241 after the report period or effective date of the information,
242 whichever is earlier, including, but not limited to, any change
243 of:
244 (a) Information contained in the most recent application
245 for licensure.
246 (b) Required insurance or bonds.
247 (5)(a) On or before the first day services are provided to
248 a client, a licensee must inform the client and his or her
249 immediate family or representative, if appropriate, of the right
250 to report:
251 1. Complaints. The statewide toll-free telephone number for
252 reporting complaints to the agency must be provided to clients
253 in a manner that is clearly legible and must include the words:
254 “To report a complaint regarding the services you receive,
255 please call toll-free (phone number).”
256 2. Abusive, neglectful, or exploitative practices. The
257 statewide toll-free telephone number for the central abuse
258 hotline must be provided to clients in a manner that is clearly
259 legible and must include the words: “To report abuse, neglect,
260 or exploitation, please call toll-free (phone number).”
261 3. Medicaid fraud. An agency-written description of
262 Medicaid fraud and the statewide toll-free telephone number for
263 the central Medicaid fraud hotline must be provided to clients
264 in a manner that is clearly legible and must include the words:
265 “To report suspected Medicaid fraud, please call toll-free
266 (phone number).”
267
268 The agency shall publish a minimum of a 90-day advance
269 notice of a change in the toll-free telephone numbers.
270 Section 8. Subsection (4) is added to section 408.815,
271 Florida Statutes, to read:
272 408.815 License or application denial; revocation.—
273 (4) In addition to the grounds provided in authorizing
274 statutes, the agency shall deny an application for a license or
275 license renewal if the applicant or a person having a
276 controlling interest in an applicant has been:
277 (a) Convicted of, or enters a plea of guilty or nolo
278 contendere to, regardless of adjudication, a felony under
279 chapter 409, chapter 817, chapter 893, 21 U.S.C. ss. 801-970, or
280 42 U.S.C. ss. 1395-1396, unless the sentence and any subsequent
281 period of probation for such convictions or plea ended more than
282 fifteen years prior to the date of the application;
283 (b) Terminated for cause from the Florida Medicaid program
284 pursuant to s. 409.913, unless the applicant has been in good
285 standing with the Florida Medicaid program for the most recent
286 five years; or
287 (c) Terminated for cause, pursuant to the appeals
288 procedures established by the state or Federal Government, from
289 the federal Medicare program or from any other state Medicaid
290 program, unless the applicant has been in good standing with a
291 state Medicaid program or the federal Medicare program for the
292 most recent five years and the termination occurred at least 20
293 years prior to the date of the application.
294 Section 9. Subsection (4) of section 409.905, Florida
295 Statutes, is amended to read:
296 409.905 Mandatory Medicaid services.—The agency may make
297 payments for the following services, which are required of the
298 state by Title XIX of the Social Security Act, furnished by
299 Medicaid providers to recipients who are determined to be
300 eligible on the dates on which the services were provided. Any
301 service under this section shall be provided only when medically
302 necessary and in accordance with state and federal law.
303 Mandatory services rendered by providers in mobile units to
304 Medicaid recipients may be restricted by the agency. Nothing in
305 this section shall be construed to prevent or limit the agency
306 from adjusting fees, reimbursement rates, lengths of stay,
307 number of visits, number of services, or any other adjustments
308 necessary to comply with the availability of moneys and any
309 limitations or directions provided for in the General
310 Appropriations Act or chapter 216.
311 (4) HOME HEALTH CARE SERVICES.—The agency shall pay for
312 nursing and home health aide services, supplies, appliances, and
313 durable medical equipment, necessary to assist a recipient
314 living at home. An entity that provides services pursuant to
315 this subsection shall be licensed under part III of chapter 400.
316 These services, equipment, and supplies, or reimbursement
317 therefor, may be limited as provided in the General
318 Appropriations Act and do not include services, equipment, or
319 supplies provided to a person residing in a hospital or nursing
320 facility.
321 (a) In providing home health care services, the agency may
322 require prior authorization of care based on diagnosis,
323 utilization rates, or billing rates. The agency shall require
324 prior authorization for visits for home health services that are
325 not associated with a skilled nursing visit when the home health
326 agency billing rates exceed the state average by 50 percent or
327 more. The home health agency must submit the recipient’s plan of
328 care and documentation that supports the recipient’s diagnosis
329 to the agency when requesting prior authorization.
330 (b) The agency shall implement a comprehensive utilization
331 management program that requires prior authorization of all
332 private duty nursing services, an individualized treatment plan
333 that includes information about medication and treatment orders,
334 treatment goals, methods of care to be used, and plans for care
335 coordination by nurses and other health professionals. The
336 utilization management program shall also include a process for
337 periodically reviewing the ongoing use of private duty nursing
338 services. The assessment of need shall be based on a child’s
339 condition, family support and care supplements, a family’s
340 ability to provide care, and a family’s and child’s schedule
341 regarding work, school, sleep, and care for other family
342 dependents. When implemented, the private duty nursing
343 utilization management program shall replace the current
344 authorization program used by the Agency for Health Care
345 Administration and the Children’s Medical Services program of
346 the Department of Health. The agency may competitively bid on a
347 contract to select a qualified organization to provide
348 utilization management of private duty nursing services. The
349 agency is authorized to seek federal waivers to implement this
350 initiative.
351 (c) The agency may not pay for home health services, unless
352 the services are medically necessary, and:
353 1. The services are ordered by a physician.
354 2. The written prescription for the services is signed and
355 dated by the recipient’s physician before the development of a
356 plan of care and before any request requiring prior
357 authorization.
358 3. The physician ordering the services is not employed,
359 under contract with, or otherwise affiliated with the home
360 health agency rendering the services. However, this subparagraph
361 does not apply to a home health agency affiliated with a
362 retirement community, of which the parent corporation or a
363 related legal entity owns a rural health clinic certified under
364 42 C.F.R. part 491, subpart A, ss. 1-11, a nursing home licensed
365 under part II of chapter 400, or an apartment or single-family
366 home for independent living.
367 4. The physician ordering the services has examined the
368 recipient within the 30 days preceding the initial request for
369 the services and biannually thereafter.
370 5. The written prescription for the services includes the
371 recipient’s acute or chronic medical condition or diagnosis, the
372 home health service required, and, for skilled nursing services,
373 the frequency and duration of the services.
374 6. The national provider identifier, Medicaid
375 identification number, or medical practitioner license number of
376 the physician ordering the services is listed on the written
377 prescription for the services, the claim for home health
378 reimbursement, and the prior authorization request.
379 Section 10. Paragraph (a) of subsection (9) of section
380 409.907, Florida Statutes, is amended to read:
381 (9) Upon receipt of a completed, signed, and dated
382 application, and completion of any necessary background
383 investigation and criminal history record check, the agency must
384 either:
385 (a) Enroll the applicant as a Medicaid provider upon
386 approval of the provider application. The enrollment effective
387 date shall be the date the agency receives the provider
388 application. With respect to a provider that requires a Medicare
389 certification survey, the enrollment effective date is the date
390 the certification is awarded. With respect to a provider that
391 completes a change of ownership, the effective date is the date
392 the agency received the application, the date the change of
393 ownership was complete, or the date the applicant became
394 eligible to provide services under Medicaid, whichever date is
395 later. With respect to a provider of emergency medical services
396 transportation or emergency services and care, the effective
397 date is the date the services were rendered. Payment for any
398 claims for services provided to Medicaid recipients between the
399 date of receipt of the application and the date of approval is
400 contingent on applying any and all applicable audits and edits
401 contained in the agency’s claims adjudication and payment
402 processing systems. The agency may enroll a provider located
403 outside the State of Florida if the provider’s location is no
404 more than 50 miles from the Florida state line, and the agency
405 determines a need for that provider type to ensure adequate
406 access to care; or
407
408 ====== D I R E C T O R Y C L A U S E A M E N D M E N T ======
409 And the directory clause is amended as follows:
410 Delete line 402
411 and insert:
412 Section 4. Subsections (10) and (11) are added to section
413 400.471
414
415 ================= T I T L E A M E N D M E N T ================
416 And the title is amended as follows:
417 Delete lines 16 - 27
418 and insert:
419 certain misconduct; providing limitations on licensing of home
420 health agencies in certain counties; amending s. 400.474, F.S.;
421 authorizing the Agency for Health Care Administration to deny,
422 revoke, or suspend the license of or fine a home health agency
423 that provides remuneration to certain facilities or bills the
424 Medicaid program for medically unnecessary services; providing
425 that certain discounts, compensations, waivers of payments, or
426 payment practices; creating s. 408.8065, F.S.; providing
427 additional licensure requirements for home health agencies, home
428 medical equipment providers, and health care clinics; requiring
429 the posting of a surety bond in a specified minimum amount under
430 certain circumstances;