Florida Senate - 2009 SB 1986 By Senator Gaetz 4-00827-09 20091986__ 1 A bill to be entitled 2 An act relating to Medicaid; amending s. 409.913, 3 F.S.; authorizing the Agency for Health Care 4 Administration to immediately terminate participation 5 of a corporate Medicaid provider for actions or 6 inactions of an officer, director, affiliated person, 7 or other person having an ownership interest; 8 requiring the agency to issue a final order under ch. 9 120, F.S., in order to terminate a provider's 10 participation in the Medicaid program; authorizing the 11 agency to terminate or suspend a corporate Medicaid 12 provider's participation in this state's Medicaid 13 program if its participation has been terminated or 14 suspended in another state or by the Federal 15 Government; authorizing the agency to sanction a 16 corporate Medicaid provider for specified violations; 17 clarifying that the agency's calculation of 18 overpayment in its audit report is based on 19 documentation created contemporaneously with the goods 20 or services rendered and made available to the agency 21 before the issuance of the audit report; prohibiting a 22 Medicaid provider from relying upon or presenting 23 evidence of documentation or data that was not created 24 contemporaneously with the goods or services rendered 25 and made available to the agency before the issuance 26 of its audit report; providing an effective date. 27 28 Be It Enacted by the Legislature of the State of Florida: 29 30 Section 1. Subsections (13), (14), (15), (21), and (22) of 31 section 409.913, Florida Statutes, are amended to read: 32 409.913 Oversight of the integrity of the Medicaid 33 program.—The agency shall operate a program to oversee the 34 activities of Florida Medicaid recipients, and providers and 35 their representatives, to ensure that fraudulent and abusive 36 behavior and neglect of recipients occur to the minimum extent 37 possible, and to recover overpayments and impose sanctions as 38 appropriate. Beginning January 1, 2003, and each year 39 thereafter, the agency and the Medicaid Fraud Control Unit of 40 the Department of Legal Affairs shall submit a joint report to 41 the Legislature documenting the effectiveness of the state's 42 efforts to control Medicaid fraud and abuse and to recover 43 Medicaid overpayments during the previous fiscal year. The 44 report must describe the number of cases opened and investigated 45 each year; the sources of the cases opened; the disposition of 46 the cases closed each year; the amount of overpayments alleged 47 in preliminary and final audit letters; the number and amount of 48 fines or penalties imposed; any reductions in overpayment 49 amounts negotiated in settlement agreements or by other means; 50 the amount of final agency determinations of overpayments; the 51 amount deducted from federal claiming as a result of 52 overpayments; the amount of overpayments recovered each year; 53 the amount of cost of investigation recovered each year; the 54 average length of time to collect from the time the case was 55 opened until the overpayment is paid in full; the amount 56 determined as uncollectible and the portion of the uncollectible 57 amount subsequently reclaimed from the Federal Government; the 58 number of providers, by type, that are terminated from 59 participation in the Medicaid program as a result of fraud and 60 abuse; and all costs associated with discovering and prosecuting 61 cases of Medicaid overpayments and making recoveries in such 62 cases. The report must also document actions taken to prevent 63 overpayments and the number of providers prevented from 64 enrolling in or reenrolling in the Medicaid program as a result 65 of documented Medicaid fraud and abuse and must recommend 66 changes necessary to prevent or recover overpayments. 67 (13) The agency may immediately terminate participation of 68 a Medicaid provider in the Medicaid program and may seek civil 69 remedies or impose other administrative sanctions against a 70 Medicaid provider, if the provider, or if the provider is not a 71 natural person, any principal, officer, director, agent, 72 managing employee, affiliated person, or any partner or 73 shareholder having an ownership interest in the provider equal 74 to 5 percent or greater, has been: 75 (a) Convicted of a criminal offense related to the delivery 76 of any health care goods or services, including the performance 77 of management or administrative functions relating to the 78 delivery of health care goods or services; 79 (b) Convicted of a criminal offense under federal law or 80 the law of any state relating to the practice of the provider's 81 profession; or 82 (c) Found by a court of competent jurisdiction to have 83 neglected or physically abused a patient in connection with the 84 delivery of health care goods or services. 85 If the agency effects a termination under this subsection as an 86 immediate termination, the agency shall issue an immediate final 87 order under s. 120.569(2). 88 (14) If the provider, or if the provider is not a natural 89 person, any principal, officer, director, agent, managing 90 employee, affiliated person, or any partner or shareholder 91 having an ownership interest in the provider equal to 5 percent 92 or greater, has been suspended or terminated from participation 93 in the Medicaid program or the Medicare program by the Federal 94 Government or any state, the agency must immediately suspend or 95 terminate, as appropriate, the provider's participation in this 96 state'sthe FloridaMedicaid program for a period no less than 97 that imposed by the Federal Government or any other state, and 98 may not enroll such provider in this state'sthe Florida99 Medicaid program while such foreign suspension or termination 100 remains in effect. This sanction is in addition to all other 101 remedies provided by law. 102 (15) The agency may seek any remedy provided by law, 103 including, but not limited to, the remedies provided in 104 subsections (13) and (16) and s. 812.035, if: 105 (a) The provider's license has not been renewed, or has 106 been revoked, suspended, or terminated, for cause, by the 107 licensing agency of any state; 108 (b) The provider has failed to make available or has 109 refused access to Medicaid-related records to an auditor, 110 investigator, or other authorized employee or agent of the 111 agency, the Attorney General, a state attorney, or the Federal 112 Government; 113 (c) The provider has not furnished or has failed to make 114 available such Medicaid-related records as the agency has found 115 necessary to determine whether Medicaid payments are or were due 116 and the amounts thereof; 117 (d) The provider has failed to maintain medical records 118 made at the time of service, or prior to service if prior 119 authorization is required, demonstrating the necessity and 120 appropriateness of the goods or services rendered; 121 (e) The provider is not in compliance with provisions of 122 Medicaid provider publications that have been adopted by 123 reference as rules in the Florida Administrative Code; with 124 provisions of state or federal laws, rules, or regulations; with 125 provisions of the provider agreement between the agency and the 126 provider; or with certifications found on claim forms or on 127 transmittal forms for electronically submitted claims that are 128 submitted by the provider or authorized representative, as such 129 provisions apply to the Medicaid program; 130 (f) The provider or person who ordered or prescribed the 131 care, services, or supplies has furnished, or ordered the 132 furnishing of, goods or services to a recipient which are 133 inappropriate, unnecessary, excessive, or harmful to the 134 recipient or are of inferior quality; 135 (g) The provider has demonstrated a pattern of failure to 136 provide goods or services that are medically necessary; 137 (h) The provider or an authorized representative of the 138 provider, or a person who ordered or prescribed the goods or 139 services, has submitted or caused to be submitted false or a 140 pattern of erroneous Medicaid claims; 141 (i) The provider or an authorized representative of the 142 provider, or a person who has ordered or prescribed the goods or 143 services, has submitted or caused to be submitted a Medicaid 144 provider enrollment application, a request for prior 145 authorization for Medicaid services, a drug exception request, 146 or a Medicaid cost report that contains materially false or 147 incorrect information; 148 (j) The provider or an authorized representative of the 149 provider has collected from or billed a recipient or a 150 recipient's responsible party improperly for amounts that should 151 not have been so collected or billed by reason of the provider's 152 billing the Medicaid program for the same service; 153 (k) The provider or an authorized representative of the 154 provider has included in a cost report costs that are not 155 allowable under a Florida Title XIX reimbursement plan, after 156 the provider or authorized representative had been advised in an 157 audit exit conference or audit report that the costs were not 158 allowable; 159 (l) The provider is charged by information or indictment 160 with fraudulent billing practices. The sanction applied for this 161 reason is limited to suspension of the provider's participation 162 in the Medicaid program for the duration of the indictment 163 unless the provider is found guilty pursuant to the information 164 or indictment; 165 (m) The provider or a person who has ordered, or prescribed 166 the goods or services is found liable for negligent practice 167 resulting in death or injury to the provider's patient; 168 (n) The provider fails to demonstrate that it had available 169 during a specific audit or review period sufficient quantities 170 of goods, or sufficient time in the case of services, to support 171 the provider's billings to the Medicaid program; 172 (o) The provider has failed to comply with the notice and 173 reporting requirements of s. 409.907; 174 (p) The agency has received reliable information of patient 175 abuse or neglect or of any act prohibited by s. 409.920; or 176 (q) The provider has failed to comply with an agreed-upon 177 repayment schedule. 178 If the violation involves any action or inaction by a provider, 179 or if the provider is not a natural person, by any principal, 180 officer, director, agent, managing employee, affiliated person, 181 or any partner or shareholder having an ownership interest equal 182 to 5 percent or greater in the provider, such action or inaction 183 constitutes a violation of this subsection and the provider may 184 be sanctioned. 185 (21) When making a determination that an overpayment has 186 occurred, the agency shall prepare and issue an audit report to 187 the provider showing the calculation of overpayments. If the 188 agency’s determination that an overpayment has occurred is based 189 upon a review of the provider’s records, the calculation of 190 overpayment shall be based upon documentation created 191 contemporaneously with the goods or services rendered and made 192 available to the agency before the issuance of the audit report. 193 (22) The audit report, supported by agency work papers, 194 showing an overpayment to a provider constitutes evidence of the 195 overpayment. A provider may not present or elicit testimony, 196 either on direct examination or cross-examination in any court 197 or administrative proceeding, regarding the purchase or 198 acquisition by any means of drugs, goods, or supplies; sales or 199 divestment by any means of drugs, goods, or supplies; or 200 inventory of drugs, goods, or supplies, unless such acquisition, 201 sales, divestment, or inventory is documented by written 202 invoices, written inventory records, or other competent written 203 documentary evidence maintained in the normal course of the 204 provider's business. Notwithstanding the applicable rules of 205 discovery, all documentation that will be offered as evidence at 206 an administrative hearing on a Medicaid overpayment must be 207 exchanged by all parties at least 14 days before the 208 administrative hearing or must be excluded from consideration. A 209 provider may not rely upon or present evidence of documentation 210 or data that was not created contemporaneously with the goods or 211 services rendered and made available to the agency before 212 issuance of the audit report. 213 Section 2. This act shall take effect July 1, 2009.