Florida Senate - 2010 CS for SB 752
By the Committee on Health Regulation; and Senator Gaetz
588-02758-10 2010752c1
1 A bill to be entitled
2 An act relating to health care fraud; amending s.
3 400.471, F.S.; prohibiting the Agency for Health Care
4 Administration from issuing an initial license to a
5 home health agency for the purpose of opening a new
6 home health agency under certain conditions until a
7 specified date; prohibiting the agency from issuing a
8 change-of-ownership license to a home health agency
9 under certain conditions until a specified date;
10 providing an exception; amending s. 400.474, F.S.;
11 authorizing the agency to revoke a home health agency
12 license if the applicant or any controlling interest
13 has been sanctioned for acts specified under s.
14 400.471(10), F.S.; amending s. 408.815, F.S.; revising
15 the grounds upon which the agency may deny or revoke
16 an application for an initial license, a change-of
17 ownership license, or a licensure renewal for certain
18 health care entities listed in s. 408.802, F.S.;
19 amending s. 409.907, F.S.; extending the number of
20 years that Medicaid providers must retain Medicaid
21 recipient records; adding additional requirements to
22 the Medicaid provider agreement; revising
23 applicability of screening requirements; revising
24 conditions under which the agency is authorized to
25 deny a Medicaid provider application; amending s.
26 409.912, F.S.; revising requirements for Medicaid
27 prepaid, fixed-sum, and managed care contracts;
28 repealing s. 409.9122(13), F.S., relating to the
29 enrollee assignment process of Medicaid managed
30 prepaid health plans for those Medicaid managed
31 prepaid health plans operating in Miami-Dade County;
32 amending s. 409.913, F.S.; removing a required element
33 from the joint Medicaid fraud and abuse report
34 submitted by the agency and the Medicaid Fraud Control
35 Unit of the Department of Legal Affairs; extending the
36 number of years that Medicaid providers must retain
37 Medicaid recipient records; authorizing the Medicaid
38 program integrity staff to immediately suspend or
39 terminate a Medicaid provider for engaging in
40 specified conduct; removing a requirement for the
41 agency to hold suspended Medicaid payments in a
42 separate account; authorizing the agency to deny
43 payment or require repayment to Medicaid providers
44 convicted of certain crimes; authorizing the agency to
45 terminate a Medicaid provider if the provider fails to
46 reimburse a fine determined by a final order;
47 authorizing the agency to withhold Medicaid
48 reimbursement to a Medicaid provider that fails to pay
49 a fine determined by a final order, fails to enter
50 into a repayment plan, or fails to comply with a
51 repayment plan or settlement agreement; amending s.
52 409.9203, F.S.; providing that certain state employees
53 are ineligible from receiving a reward for reporting
54 Medicaid fraud; amending s. 456.001, F.S.; defining
55 the term “affiliate” or “affiliated person” as it
56 relates to health professions and occupations;
57 amending s. 456.041, F.S.; requiring the Department of
58 Health to include administrative complaint, arrest,
59 and any conviction information relating to the
60 practitioner’s profile; providing a disclaimer;
61 amending s. 456.0635, F.S.; revising the grounds under
62 which the Department of Health or corresponding board
63 is required to refuse to admit a candidate to an
64 examination and refuse to issue or renew a license,
65 certificate, or registration of a health care
66 practitioner; amending s. 456.072, F.S.; clarifying a
67 ground under which disciplinary actions may be taken;
68 amending s. 456.073, F.S.; revising applicability of
69 investigations and administrative complaints to
70 include Medicaid fraud; amending s. 456.074, F.S.;
71 authorizing the Department of Health to issue an
72 emergency order suspending the license of any person
73 licensed under ch. 456, F.S., who engages in specified
74 criminal conduct; providing an effective date.
75
76 Be It Enacted by the Legislature of the State of Florida:
77
78 Section 1. Subsection (11) of section 400.471, Florida
79 Statutes, is amended to read:
80 400.471 Application for license; fee.—
81 (11)(a) The agency may not issue an initial license to a
82 home health agency under part II of chapter 408 or this part for
83 the purpose of opening a new home health agency until July 1,
84 2012 2010, in any county that has at least one actively licensed
85 home health agency and a population of persons 65 years of age
86 or older, as indicated in the most recent population estimates
87 published by the Executive Office of the Governor, of fewer than
88 1,200 per home health agency. In such counties, for any
89 application received by the agency prior to July 1, 2009, which
90 has been deemed by the agency to be complete except for proof of
91 accreditation, the agency may issue an initial ownership license
92 only if the applicant has applied for accreditation before May
93 1, 2009, from an accrediting organization that is recognized by
94 the agency.
95 (b) Effective October 1, 2009, the agency may not issue a
96 change of ownership license to a home health agency under part
97 II of chapter 408 or this part until July 1, 2012 2010, in any
98 county that has at least one actively licensed home health
99 agency and a population of persons 65 years of age or older, as
100 indicated in the most recent population estimates published by
101 the Executive Office of the Governor, of fewer than 1,200 per
102 home health agency. In such counties, for any application
103 received by the agency before prior to October 1, 2009, which
104 has been deemed by the agency to be complete except for proof of
105 accreditation, the agency may issue a change of ownership
106 license only if the applicant has applied for accreditation
107 before August 1, 2009, from an accrediting organization that is
108 recognized by the agency. This paragraph does not apply to an
109 application for a change in ownership from an existing home
110 health agency that is accredited, has been licensed by the state
111 at least 5 years, and is in good standing with the agency.
112 Section 2. Subsection (8) is added to section 400.474,
113 Florida Statutes, to read:
114 400.474 Administrative penalties.—
115 (8) The agency may revoke the license of a home health
116 agency that is not eligible for licensure renewal under s.
117 400.471(10).
118 Section 3. Subsection (4) of section 408.815, Florida
119 Statutes, is amended, and subsection (5) is added to that
120 section, to read:
121 408.815 License or application denial; revocation.—
122 (4) In addition to the grounds provided in authorizing
123 statutes, the agency shall deny an application for an initial a
124 license or a change-of-ownership license renewal if the
125 applicant or a person having a controlling interest in the an
126 applicant has been:
127 (a) Has been convicted of, or entered enters a plea of
128 guilty or nolo contendere to, regardless of adjudication, a
129 felony under chapter 409, chapter 817, chapter 893, or a similar
130 felony offense committed in another state or jurisdiction 21
131 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the
132 sentence and any subsequent period of probation for such
133 conviction convictions or plea ended more than 15 years before
134 prior to the date of the application;
135 (b) Has been convicted of, or entered a plea of guilty or
136 nolo contendere to, regardless of adjudication, a felony under
137 21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the
138 sentence and any subsequent period of probation for such
139 conviction or plea ended more than 15 years before the date of
140 the application;
141 (c)(b) Has been terminated for cause from the Florida
142 Medicaid program pursuant to s. 409.913, unless the applicant
143 has been in good standing with the Florida Medicaid program for
144 the most recent 5 years; or
145 (d)(c) Has been terminated for cause, pursuant to the
146 appeals procedures established by the state, or Federal
147 Government, from the federal Medicare program or from any other
148 state Medicaid program, unless the applicant has been in good
149 standing with a state Medicaid program or the federal Medicare
150 program for the most recent 5 years and the termination occurred
151 at least 20 years before prior to the date of the application;
152 or.
153 (e) Is currently listed on the United States Department of
154 Health and Human Services Office of Inspector General’s List of
155 Excluded Individuals and Entities.
156 (5) In addition to the grounds provided in authorizing
157 statutes, the agency shall deny an application for licensure
158 renewal if the applicant or a person having a controlling
159 interest in the applicant:
160 (a) Has been convicted of, or entered a plea of guilty or
161 nolo contendere to, regardless of adjudication, a felony under
162 chapter 409, chapter 817, chapter 893, or a similar felony
163 offense committed in another state or jurisdiction since July 1,
164 2009;
165 (b) Has been convicted of, or entered a plea of guilty or
166 nolo contendere to, regardless of adjudication, a felony under
167 21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396 since July 1,
168 2009;
169 (c) Has been terminated for cause from the Florida Medicaid
170 program pursuant to s. 409.913, unless the applicant has been in
171 good standing with the Florida Medicaid program for the most
172 recent 5 years;
173 (d) Has been terminated for cause, pursuant to the appeals
174 procedures established by the state, from any other state
175 Medicaid program, unless the applicant has been in good standing
176 with a state Medicaid program for the most recent 5 years and
177 the termination occurred at least 20 years before the date of
178 the application; or
179 (e) Is currently listed on the United States Department of
180 Health and Human Services Office of Inspector General’s List of
181 Excluded Individuals and Entities.
182 Section 4. Paragraph (c) of subsection (3) of section
183 409.907, Florida Statutes, is amended, paragraph (k) is added to
184 that subsection, and subsection (8), paragraph (b) of subsection
185 (9), and subsection (10) of that section are amended, to read:
186 409.907 Medicaid provider agreements.—The agency may make
187 payments for medical assistance and related services rendered to
188 Medicaid recipients only to an individual or entity who has a
189 provider agreement in effect with the agency, who is performing
190 services or supplying goods in accordance with federal, state,
191 and local law, and who agrees that no person shall, on the
192 grounds of handicap, race, color, or national origin, or for any
193 other reason, be subjected to discrimination under any program
194 or activity for which the provider receives payment from the
195 agency.
196 (3) The provider agreement developed by the agency, in
197 addition to the requirements specified in subsections (1) and
198 (2), shall require the provider to:
199 (c) Retain all medical and Medicaid-related records for a
200 period of 6 5 years to satisfy all necessary inquiries by the
201 agency.
202 (k) Report any change of any principal of the provider,
203 including any officer, director, agent, managing employee, or
204 affiliated person, or any partner or shareholder who has an
205 ownership interest equal to 5 percent or more in the provider.
206 The provider must report changes to the agency no later than 30
207 days after the change occurs.
208 (8)(a) Each provider, or each principal of the provider if
209 the provider is a corporation, partnership, association, or
210 other entity, seeking to participate in the Medicaid program
211 must submit a complete set of his or her fingerprints to the
212 agency for the purpose of conducting a criminal history record
213 check. Principals of the provider include any officer, director,
214 billing agent, managing employee, or affiliated person, or any
215 partner or shareholder who has an ownership interest equal to 5
216 percent or more in the provider. However, a director of a not
217 for-profit corporation or organization is not a principal for
218 purposes of a background investigation as required by this
219 section if the director: serves solely in a voluntary capacity
220 for the corporation or organization, does not regularly take
221 part in the day-to-day operational decisions of the corporation
222 or organization, receives no remuneration from the not-for
223 profit corporation or organization for his or her service on the
224 board of directors, has no financial interest in the not-for
225 profit corporation or organization, and has no family members
226 with a financial interest in the not-for-profit corporation or
227 organization; and if the director submits an affidavit, under
228 penalty of perjury, to this effect to the agency and the not
229 for-profit corporation or organization submits an affidavit,
230 under penalty of perjury, to this effect to the agency as part
231 of the corporation’s or organization’s Medicaid provider
232 agreement application. Notwithstanding the above, the agency may
233 require a background check for any person reasonably suspected
234 by the agency to have been convicted of a crime. This subsection
235 does shall not apply to:
236 1. A hospital licensed under chapter 395;
237 2. A nursing home licensed under chapter 400;
238 3. A hospice licensed under chapter 400;
239 4. An assisted living facility licensed under chapter 429;
240 1.5. A unit of local government, except that requirements
241 of this subsection apply to nongovernmental providers and
242 entities when contracting with the local government to provide
243 Medicaid services. The actual cost of the state and national
244 criminal history record checks must be borne by the
245 nongovernmental provider or entity; or
246 2.6. Any business that derives more than 50 percent of its
247 revenue from the sale of goods to the final consumer, and the
248 business or its controlling parent either is required to file a
249 form 10-K or other similar statement with the Securities and
250 Exchange Commission or has a net worth of $50 million or more.
251 (b) Background screening shall be conducted in accordance
252 with chapter 435 and s. 408.809. The agency shall submit the
253 fingerprints to the Department of Law Enforcement. The
254 department shall conduct a state criminal-background
255 investigation and forward the fingerprints to the Federal Bureau
256 of Investigation for a national criminal-history record check.
257 The cost of the state and national criminal record check shall
258 be borne by the provider.
259 (c) The agency may permit a provider to participate in the
260 Medicaid program pending the results of the criminal record
261 check. However, such permission is fully revocable if the record
262 check reveals any crime-related history as provided in
263 subsection (10).
264 (c)(d) Proof of compliance with the requirements of level 2
265 screening under s. 435.04 conducted within 12 months prior to
266 the date that the Medicaid provider application is submitted to
267 the agency shall fulfill the requirements of this subsection.
268 Proof of compliance with the requirements of level 1 screening
269 under s. 435.03 conducted within 12 months prior to the date
270 that the Medicaid provider application is submitted to the
271 agency shall meet the requirement that the Department of Law
272 Enforcement conduct a state criminal history record check.
273 (9) Upon receipt of a completed, signed, and dated
274 application, and completion of any necessary background
275 investigation and criminal history record check, the agency must
276 either:
277 (b) Deny the application if the agency finds that it is in
278 the best interest of the Medicaid program to do so. The agency
279 may consider any the factors listed in subsection (10), as well
280 as any other factor that could affect the effective and
281 efficient administration of the program, including, but not
282 limited to, the applicant’s demonstrated ability to provide
283 services, conduct business, and operate a financially viable
284 concern; the current availability of medical care, services, or
285 supplies to recipients, taking into account geographic location
286 and reasonable travel time; the number of providers of the same
287 type already enrolled in the same geographic area; and the
288 credentials, experience, success, and patient outcomes of the
289 provider for the services that it is making application to
290 provide in the Medicaid program. The agency shall deny the
291 application if the agency finds that a provider; any officer,
292 director, agent, managing employee, or affiliated person; or any
293 principal, partner, or shareholder having an ownership interest
294 equal to 5 percent or greater in the provider if the provider is
295 a corporation, partnership, or other business entity, has failed
296 to pay all outstanding fines or overpayments assessed by final
297 order of the agency or final order of the Centers for Medicare
298 and Medicaid Services, not subject to further appeal, unless the
299 provider agrees to a repayment plan that includes withholding
300 Medicaid reimbursement until the amount due is paid in full.
301 (10) The agency shall deny the application if may consider
302 whether the provider, or any officer, director, agent, managing
303 employee, or affiliated person, or any principal, partner, or
304 shareholder having an ownership interest equal to 5 percent or
305 greater in the provider if the provider is a corporation,
306 partnership, or other business entity, has committed an offense
307 listed in s. 409.913(13), and may deny the application if one of
308 these persons has:
309 (a) Made a false representation or omission of any material
310 fact in making the application, including the submission of an
311 application that conceals the controlling or ownership interest
312 of any officer, director, agent, managing employee, affiliated
313 person, or principal, partner, or shareholder who may not be
314 eligible to participate;
315 (b) Been or is currently excluded, suspended, terminated
316 from, or has involuntarily withdrawn from participation in,
317 Florida’s Medicaid program or any other state’s Medicaid
318 program, or from participation in any other governmental or
319 private health care or health insurance program;
320 (c) Been convicted of a criminal offense relating to the
321 delivery of any goods or services under Medicaid or Medicare or
322 any other public or private health care or health insurance
323 program including the performance of management or
324 administrative services relating to the delivery of goods or
325 services under any such program;
326 (d) Been convicted under federal or state law of a criminal
327 offense related to the neglect or abuse of a patient in
328 connection with the delivery of any health care goods or
329 services;
330 (c)(e) Been convicted under federal or state law of a
331 criminal offense relating to the unlawful manufacture,
332 distribution, prescription, or dispensing of a controlled
333 substance;
334 (d)(f) Been convicted of any criminal offense relating to
335 fraud, theft, embezzlement, breach of fiduciary responsibility,
336 or other financial misconduct;
337 (e)(g) Been convicted under federal or state law of a crime
338 punishable by imprisonment of a year or more which involves
339 moral turpitude;
340 (f)(h) Been convicted in connection with the interference
341 or obstruction of any investigation into any criminal offense
342 listed in this subsection;
343 (g)(i) Been found to have violated federal or state laws,
344 rules, or regulations governing Florida’s Medicaid program or
345 any other state’s Medicaid program, the Medicare program, or any
346 other publicly funded federal or state health care or health
347 insurance program, and been sanctioned accordingly;
348 (h)(j) Been previously found by a licensing, certifying, or
349 professional standards board or agency to have violated the
350 standards or conditions relating to licensure or certification
351 or the quality of services provided; or
352 (i)(k) Failed to pay any fine or overpayment properly
353 assessed under the Medicaid program in which no appeal is
354 pending or after resolution of the proceeding by stipulation or
355 agreement, unless the agency has issued a specific letter of
356 forgiveness or has approved a repayment schedule to which the
357 provider agrees to adhere.
358 Section 5. Subsections (10) and (32) of section 409.912,
359 Florida Statutes, are amended to read:
360 409.912 Cost-effective purchasing of health care.—The
361 agency shall purchase goods and services for Medicaid recipients
362 in the most cost-effective manner consistent with the delivery
363 of quality medical care. To ensure that medical services are
364 effectively utilized, the agency may, in any case, require a
365 confirmation or second physician’s opinion of the correct
366 diagnosis for purposes of authorizing future services under the
367 Medicaid program. This section does not restrict access to
368 emergency services or poststabilization care services as defined
369 in 42 C.F.R. part 438.114. Such confirmation or second opinion
370 shall be rendered in a manner approved by the agency. The agency
371 shall maximize the use of prepaid per capita and prepaid
372 aggregate fixed-sum basis services when appropriate and other
373 alternative service delivery and reimbursement methodologies,
374 including competitive bidding pursuant to s. 287.057, designed
375 to facilitate the cost-effective purchase of a case-managed
376 continuum of care. The agency shall also require providers to
377 minimize the exposure of recipients to the need for acute
378 inpatient, custodial, and other institutional care and the
379 inappropriate or unnecessary use of high-cost services. The
380 agency shall contract with a vendor to monitor and evaluate the
381 clinical practice patterns of providers in order to identify
382 trends that are outside the normal practice patterns of a
383 provider’s professional peers or the national guidelines of a
384 provider’s professional association. The vendor must be able to
385 provide information and counseling to a provider whose practice
386 patterns are outside the norms, in consultation with the agency,
387 to improve patient care and reduce inappropriate utilization.
388 The agency may mandate prior authorization, drug therapy
389 management, or disease management participation for certain
390 populations of Medicaid beneficiaries, certain drug classes, or
391 particular drugs to prevent fraud, abuse, overuse, and possible
392 dangerous drug interactions. The Pharmaceutical and Therapeutics
393 Committee shall make recommendations to the agency on drugs for
394 which prior authorization is required. The agency shall inform
395 the Pharmaceutical and Therapeutics Committee of its decisions
396 regarding drugs subject to prior authorization. The agency is
397 authorized to limit the entities it contracts with or enrolls as
398 Medicaid providers by developing a provider network through
399 provider credentialing. The agency may competitively bid single
400 source-provider contracts if procurement of goods or services
401 results in demonstrated cost savings to the state without
402 limiting access to care. The agency may limit its network based
403 on the assessment of beneficiary access to care, provider
404 availability, provider quality standards, time and distance
405 standards for access to care, the cultural competence of the
406 provider network, demographic characteristics of Medicaid
407 beneficiaries, practice and provider-to-beneficiary standards,
408 appointment wait times, beneficiary use of services, provider
409 turnover, provider profiling, provider licensure history,
410 previous program integrity investigations and findings, peer
411 review, provider Medicaid policy and billing compliance records,
412 clinical and medical record audits, and other factors. Providers
413 shall not be entitled to enrollment in the Medicaid provider
414 network. The agency shall determine instances in which allowing
415 Medicaid beneficiaries to purchase durable medical equipment and
416 other goods is less expensive to the Medicaid program than long
417 term rental of the equipment or goods. The agency may establish
418 rules to facilitate purchases in lieu of long-term rentals in
419 order to protect against fraud and abuse in the Medicaid program
420 as defined in s. 409.913. The agency may seek federal waivers
421 necessary to administer these policies.
422 (10) The agency shall not contract on a prepaid or fixed
423 sum basis for Medicaid services with an entity which knows or
424 reasonably should know that any principal, officer, director,
425 agent, managing employee, or owner of stock or beneficial
426 interest in excess of 5 percent common or preferred stock, or
427 the entity itself, has been found guilty of, regardless of
428 adjudication, or entered a plea of nolo contendere, or guilty,
429 to:
430 (a) An offense listed in s. 408.809, s. 409.913(13), or s.
431 435.04 Fraud;
432 (b) Violation of federal or state antitrust statutes,
433 including those proscribing price fixing between competitors and
434 the allocation of customers among competitors;
435 (c) Commission of a felony involving embezzlement, theft,
436 forgery, income tax evasion, bribery, falsification or
437 destruction of records, making false statements, receiving
438 stolen property, making false claims, or obstruction of justice;
439 or
440 (d) Any crime in any jurisdiction which directly relates to
441 the provision of health services on a prepaid or fixed-sum
442 basis.
443 (32) Each managed care plan that is under contract with the
444 agency to provide health care services to Medicaid recipients
445 shall annually conduct a background check with the Florida
446 Department of Law Enforcement of all persons with ownership
447 interest of 5 percent or more or executive management
448 responsibility for the managed care plan and shall submit to the
449 agency information concerning any such person who has been found
450 guilty of, regardless of adjudication, or has entered a plea of
451 nolo contendere or guilty to, any of the offenses listed in s.
452 408.809, s. 409.913(13), or s. 435.04 s. 435.03.
453 Section 6. Subsection (13) of section 409.9122, Florida
454 Statutes, is repealed.
455 Section 7. Section 409.913, Florida Statutes, is amended to
456 read:
457 409.913 Oversight of the integrity of the Medicaid
458 program.—The agency shall operate a program to oversee the
459 activities of Florida Medicaid recipients, and providers and
460 their representatives, to ensure that fraudulent and abusive
461 behavior and neglect of recipients occur to the minimum extent
462 possible, and to recover overpayments and impose sanctions as
463 appropriate. Beginning January 1, 2003, and each year
464 thereafter, the agency and the Medicaid Fraud Control Unit of
465 the Department of Legal Affairs shall submit a joint report to
466 the Legislature documenting the effectiveness of the state’s
467 efforts to control Medicaid fraud and abuse and to recover
468 Medicaid overpayments during the previous fiscal year. The
469 report must describe the number of cases opened and investigated
470 each year; the sources of the cases opened; the disposition of
471 the cases closed each year; the amount of overpayments alleged
472 in preliminary and final audit letters; the number and amount of
473 fines or penalties imposed; any reductions in overpayment
474 amounts negotiated in settlement agreements or by other means;
475 the amount of final agency determinations of overpayments; the
476 amount deducted from federal claiming as a result of
477 overpayments; the amount of overpayments recovered each year;
478 the amount of cost of investigation recovered each year; the
479 average length of time to collect from the time the case was
480 opened until the overpayment is paid in full; the amount
481 determined as uncollectible and the portion of the uncollectible
482 amount subsequently reclaimed from the Federal Government; the
483 number of providers, by type, that are terminated from
484 participation in the Medicaid program as a result of fraud and
485 abuse; and all costs associated with discovering and prosecuting
486 cases of Medicaid overpayments and making recoveries in such
487 cases. The report must also document actions taken to prevent
488 overpayments and the number of providers prevented from
489 enrolling in or reenrolling in the Medicaid program as a result
490 of documented Medicaid fraud and abuse and must include policy
491 recommendations necessary to prevent or recover overpayments and
492 changes necessary to prevent and detect Medicaid fraud. All
493 policy recommendations in the report must include a detailed
494 fiscal analysis, including, but not limited to, implementation
495 costs, estimated savings to the Medicaid program, and the return
496 on investment. The agency must submit the policy recommendations
497 and fiscal analyses in the report to the appropriate estimating
498 conference, pursuant to s. 216.137, by February 15 of each year.
499 The agency and the Medicaid Fraud Control Unit of the Department
500 of Legal Affairs each must include detailed unit-specific
501 performance standards, benchmarks, and metrics in the report,
502 including projected cost savings to the state Medicaid program
503 during the following fiscal year.
504 (1) For the purposes of this section, the term:
505 (a) “Abuse” means:
506 1. Provider practices that are inconsistent with generally
507 accepted business or medical practices and that result in an
508 unnecessary cost to the Medicaid program or in reimbursement for
509 goods or services that are not medically necessary or that fail
510 to meet professionally recognized standards for health care.
511 2. Recipient practices that result in unnecessary cost to
512 the Medicaid program.
513 (b) “Complaint” means an allegation that fraud, abuse, or
514 an overpayment has occurred.
515 (c) “Fraud” means an intentional deception or
516 misrepresentation made by a person with the knowledge that the
517 deception results in unauthorized benefit to herself or himself
518 or another person. The term includes any act that constitutes
519 fraud under applicable federal or state law.
520 (d) “Medical necessity” or “medically necessary” means any
521 goods or services necessary to palliate the effects of a
522 terminal condition, or to prevent, diagnose, correct, cure,
523 alleviate, or preclude deterioration of a condition that
524 threatens life, causes pain or suffering, or results in illness
525 or infirmity, which goods or services are provided in accordance
526 with generally accepted standards of medical practice. For
527 purposes of determining Medicaid reimbursement, the agency is
528 the final arbiter of medical necessity. Determinations of
529 medical necessity must be made by a licensed physician employed
530 by or under contract with the agency and must be based upon
531 information available at the time the goods or services are
532 provided.
533 (e) “Overpayment” includes any amount that is not
534 authorized to be paid by the Medicaid program whether paid as a
535 result of inaccurate or improper cost reporting, improper
536 claiming, unacceptable practices, fraud, abuse, or mistake.
537 (f) “Person” means any natural person, corporation,
538 partnership, association, clinic, group, or other entity,
539 whether or not such person is enrolled in the Medicaid program
540 or is a provider of health care.
541 (2) The agency shall conduct, or cause to be conducted by
542 contract or otherwise, reviews, investigations, analyses,
543 audits, or any combination thereof, to determine possible fraud,
544 abuse, overpayment, or recipient neglect in the Medicaid program
545 and shall report the findings of any overpayments in audit
546 reports as appropriate. At least 5 percent of all audits shall
547 be conducted on a random basis. As part of its ongoing fraud
548 detection activities, the agency shall identify and monitor, by
549 contract or otherwise, patterns of overutilization of Medicaid
550 services based on state averages. The agency shall track
551 Medicaid provider prescription and billing patterns and evaluate
552 them against Medicaid medical necessity criteria and coverage
553 and limitation guidelines adopted by rule. Medical necessity
554 determination requires that service be consistent with symptoms
555 or confirmed diagnosis of illness or injury under treatment and
556 not in excess of the patient’s needs. The agency shall conduct
557 reviews of provider exceptions to peer group norms and shall,
558 using statistical methodologies, provider profiling, and
559 analysis of billing patterns, detect and investigate abnormal or
560 unusual increases in billing or payment of claims for Medicaid
561 services and medically unnecessary provision of services.
562 (3) The agency may conduct, or may contract for, prepayment
563 review of provider claims to ensure cost-effective purchasing;
564 to ensure that billing by a provider to the agency is in
565 accordance with applicable provisions of all Medicaid rules,
566 regulations, handbooks, and policies and in accordance with
567 federal, state, and local law; and to ensure that appropriate
568 care is rendered to Medicaid recipients. Such prepayment reviews
569 may be conducted as determined appropriate by the agency,
570 without any suspicion or allegation of fraud, abuse, or neglect,
571 and may last for up to 1 year. Unless the agency has reliable
572 evidence of fraud, misrepresentation, abuse, or neglect, claims
573 shall be adjudicated for denial or payment within 90 days after
574 receipt of complete documentation by the agency for review. If
575 there is reliable evidence of fraud, misrepresentation, abuse,
576 or neglect, claims shall be adjudicated for denial of payment
577 within 180 days after receipt of complete documentation by the
578 agency for review.
579 (4) Any suspected criminal violation identified by the
580 agency must be referred to the Medicaid Fraud Control Unit of
581 the Office of the Attorney General for investigation. The agency
582 and the Attorney General shall enter into a memorandum of
583 understanding, which must include, but need not be limited to, a
584 protocol for regularly sharing information and coordinating
585 casework. The protocol must establish a procedure for the
586 referral by the agency of cases involving suspected Medicaid
587 fraud to the Medicaid Fraud Control Unit for investigation, and
588 the return to the agency of those cases where investigation
589 determines that administrative action by the agency is
590 appropriate. Offices of the Medicaid program integrity program
591 and the Medicaid Fraud Control Unit of the Department of Legal
592 Affairs, shall, to the extent possible, be collocated. The
593 agency and the Department of Legal Affairs shall periodically
594 conduct joint training and other joint activities designed to
595 increase communication and coordination in recovering
596 overpayments.
597 (5) A Medicaid provider is subject to having goods and
598 services that are paid for by the Medicaid program reviewed by
599 an appropriate peer-review organization designated by the
600 agency. The written findings of the applicable peer-review
601 organization are admissible in any court or administrative
602 proceeding as evidence of medical necessity or the lack thereof.
603 (6) Any notice required to be given to a provider under
604 this section is presumed to be sufficient notice if sent to the
605 address last shown on the provider enrollment file. It is the
606 responsibility of the provider to furnish and keep the agency
607 informed of the provider’s current address. United States Postal
608 Service proof of mailing or certified or registered mailing of
609 such notice to the provider at the address shown on the provider
610 enrollment file constitutes sufficient proof of notice. Any
611 notice required to be given to the agency by this section must
612 be sent to the agency at an address designated by rule.
613 (7) When presenting a claim for payment under the Medicaid
614 program, a provider has an affirmative duty to supervise the
615 provision of, and be responsible for, goods and services claimed
616 to have been provided, to supervise and be responsible for
617 preparation and submission of the claim, and to present a claim
618 that is true and accurate and that is for goods and services
619 that:
620 (a) Have actually been furnished to the recipient by the
621 provider prior to submitting the claim.
622 (b) Are Medicaid-covered goods or services that are
623 medically necessary.
624 (c) Are of a quality comparable to those furnished to the
625 general public by the provider’s peers.
626 (d) Have not been billed in whole or in part to a recipient
627 or a recipient’s responsible party, except for such copayments,
628 coinsurance, or deductibles as are authorized by the agency.
629 (e) Are provided in accord with applicable provisions of
630 all Medicaid rules, regulations, handbooks, and policies and in
631 accordance with federal, state, and local law.
632 (f) Are documented by records made at the time the goods or
633 services were provided, demonstrating the medical necessity for
634 the goods or services rendered. Medicaid goods or services are
635 excessive or not medically necessary unless both the medical
636 basis and the specific need for them are fully and properly
637 documented in the recipient’s medical record.
638
639 The agency shall deny payment or require repayment for goods or
640 services that are not presented as required in this subsection.
641 (8) The agency shall not reimburse any person or entity for
642 any prescription for medications, medical supplies, or medical
643 services if the prescription was written by a physician or other
644 prescribing practitioner who is not enrolled in the Medicaid
645 program. This section does not apply:
646 (a) In instances involving bona fide emergency medical
647 conditions as determined by the agency;
648 (b) To a provider of medical services to a patient in a
649 hospital emergency department, hospital inpatient or outpatient
650 setting, or nursing home;
651 (c) To bona fide pro bono services by preapproved non
652 Medicaid providers as determined by the agency;
653 (d) To prescribing physicians who are board-certified
654 specialists treating Medicaid recipients referred for treatment
655 by a treating physician who is enrolled in the Medicaid program;
656 (e) To prescriptions written for dually eligible Medicare
657 beneficiaries by an authorized Medicare provider who is not
658 enrolled in the Medicaid program;
659 (f) To other physicians who are not enrolled in the
660 Medicaid program but who provide a medically necessary service
661 or prescription not otherwise reasonably available from a
662 Medicaid-enrolled physician; or
663 (9) A Medicaid provider shall retain medical, professional,
664 financial, and business records pertaining to services and goods
665 furnished to a Medicaid recipient and billed to Medicaid for a
666 period of 6 5 years after the date of furnishing such services
667 or goods. The agency may investigate, review, or analyze such
668 records, which must be made available during normal business
669 hours. However, 24-hour notice must be provided if patient
670 treatment would be disrupted. The provider is responsible for
671 furnishing to the agency, and keeping the agency informed of the
672 location of, the provider’s Medicaid-related records. The
673 authority of the agency to obtain Medicaid-related records from
674 a provider is neither curtailed nor limited during a period of
675 litigation between the agency and the provider.
676 (10) Payments for the services of billing agents or persons
677 participating in the preparation of a Medicaid claim shall not
678 be based on amounts for which they bill nor based on the amount
679 a provider receives from the Medicaid program.
680 (11) The agency shall deny payment or require repayment for
681 inappropriate, medically unnecessary, or excessive goods or
682 services from the person furnishing them, the person under whose
683 supervision they were furnished, or the person causing them to
684 be furnished.
685 (12) The complaint and all information obtained pursuant to
686 an investigation of a Medicaid provider, or the authorized
687 representative or agent of a provider, relating to an allegation
688 of fraud, abuse, or neglect are confidential and exempt from the
689 provisions of s. 119.07(1):
690 (a) Until the agency takes final agency action with respect
691 to the provider and requires repayment of any overpayment, or
692 imposes an administrative sanction;
693 (b) Until the Attorney General refers the case for criminal
694 prosecution;
695 (c) Until 10 days after the complaint is determined without
696 merit; or
697 (d) At all times if the complaint or information is
698 otherwise protected by law.
699 (13) The agency shall immediately terminate participation
700 of a Medicaid provider in the Medicaid program and may seek
701 civil remedies or impose other administrative sanctions against
702 a Medicaid provider, if the provider or any principal, officer,
703 director, agent, managing employee, or affiliated person of the
704 provider, or any partner or shareholder having an ownership
705 interest in the provider equal to 5 percent or greater, has
706 been:
707 (a) Convicted of a criminal offense related to the delivery
708 of any health care goods or services, including the performance
709 of management or administrative functions relating to the
710 delivery of health care goods or services;
711 (b) Convicted of a criminal offense under federal law or
712 the law of any state relating to the practice of the provider’s
713 profession; or
714 (c) Found by a court of competent jurisdiction to have
715 neglected or physically abused a patient in connection with the
716 delivery of health care goods or services.
717
718 If the agency determines a provider did not participate or
719 acquiesce in an offense specified in paragraph (a), paragraph
720 (b), or paragraph (c), termination will not be imposed. If the
721 agency effects a termination under this subsection, the agency
722 shall issue an immediate termination final order as provided in
723 subsection (16) pursuant to s. 120.569(2)(n).
724 (14) If the provider has been suspended or terminated from
725 participation in the Medicaid program or the Medicare program by
726 the Federal Government or any state, the agency must immediately
727 suspend or terminate, as appropriate, the provider’s
728 participation in this state’s Medicaid program for a period no
729 less than that imposed by the Federal Government or any other
730 state, and may not enroll such provider in this state’s Medicaid
731 program while such foreign suspension or termination remains in
732 effect. The agency shall also immediately suspend or terminate,
733 as appropriate, a provider’s participation in this state’s
734 Medicaid program if the provider participated or acquiesced in
735 any action for which any principal, officer, director, agent,
736 managing employee, or affiliated person of the provider, or any
737 partner or shareholder having an ownership interest in the
738 provider equal to 5 percent or greater, was suspended or
739 terminated from participating in the Medicaid program or the
740 Medicare program by the Federal Government or any state. This
741 sanction is in addition to all other remedies provided by law.
742 If the agency suspends or terminates a provider’s participation
743 in the state’s Medicaid program under this subsection, the
744 agency shall issue an immediate suspension or immediate
745 termination order as provided in subsection (16).
746 (15) The agency shall seek a remedy provided by law,
747 including, but not limited to, any remedy provided in
748 subsections (13) and (16) and s. 812.035, if:
749 (a) The provider’s license has not been renewed, or has
750 been revoked, suspended, or terminated, for cause, by the
751 licensing agency of any state;
752 (b) The provider has failed to make available or has
753 refused access to Medicaid-related records to an auditor,
754 investigator, or other authorized employee or agent of the
755 agency, the Attorney General, a state attorney, or the Federal
756 Government;
757 (c) The provider has not furnished or has failed to make
758 available such Medicaid-related records as the agency has found
759 necessary to determine whether Medicaid payments are or were due
760 and the amounts thereof;
761 (d) The provider has failed to maintain medical records
762 made at the time of service, or prior to service if prior
763 authorization is required, demonstrating the necessity and
764 appropriateness of the goods or services rendered;
765 (e) The provider is not in compliance with provisions of
766 Medicaid provider publications that have been adopted by
767 reference as rules in the Florida Administrative Code; with
768 provisions of state or federal laws, rules, or regulations; with
769 provisions of the provider agreement between the agency and the
770 provider; or with certifications found on claim forms or on
771 transmittal forms for electronically submitted claims that are
772 submitted by the provider or authorized representative, as such
773 provisions apply to the Medicaid program;
774 (f) The provider or person who ordered or prescribed the
775 care, services, or supplies has furnished, or ordered the
776 furnishing of, goods or services to a recipient which are
777 inappropriate, unnecessary, excessive, or harmful to the
778 recipient or are of inferior quality;
779 (g) The provider has demonstrated a pattern of failure to
780 provide goods or services that are medically necessary;
781 (h) The provider or an authorized representative of the
782 provider, or a person who ordered or prescribed the goods or
783 services, has submitted or caused to be submitted false or a
784 pattern of erroneous Medicaid claims;
785 (i) The provider or an authorized representative of the
786 provider, or a person who has ordered or prescribed the goods or
787 services, has submitted or caused to be submitted a Medicaid
788 provider enrollment application, a request for prior
789 authorization for Medicaid services, a drug exception request,
790 or a Medicaid cost report that contains materially false or
791 incorrect information;
792 (j) The provider or an authorized representative of the
793 provider has collected from or billed a recipient or a
794 recipient’s responsible party improperly for amounts that should
795 not have been so collected or billed by reason of the provider’s
796 billing the Medicaid program for the same service;
797 (k) The provider or an authorized representative of the
798 provider has included in a cost report costs that are not
799 allowable under a Florida Title XIX reimbursement plan, after
800 the provider or authorized representative had been advised in an
801 audit exit conference or audit report that the costs were not
802 allowable;
803 (l) The provider is charged by information or indictment
804 with fraudulent billing practices or an offense under subsection
805 (13). The sanction applied for this reason is limited to
806 suspension of the provider’s participation in the Medicaid
807 program for the duration of the indictment unless the provider
808 is found guilty pursuant to the information or indictment;
809 (m) The provider or a person who has ordered or prescribed
810 the goods or services is found liable for negligent practice
811 resulting in death or injury to the provider’s patient;
812 (n) The provider fails to demonstrate that it had available
813 during a specific audit or review period sufficient quantities
814 of goods, or sufficient time in the case of services, to support
815 the provider’s billings to the Medicaid program;
816 (o) The provider has failed to comply with the notice and
817 reporting requirements of s. 409.907;
818 (p) The agency has received reliable information of patient
819 abuse or neglect or of any act prohibited by s. 409.920; or
820 (q) The provider has failed to comply with an agreed-upon
821 repayment schedule.
822
823 A provider is subject to sanctions for violations of this
824 subsection as the result of actions or inactions of the
825 provider, or actions or inactions of any principal, officer,
826 director, agent, managing employee, or affiliated person of the
827 provider, or any partner or shareholder having an ownership
828 interest in the provider equal to 5 percent or greater, in which
829 the provider participated or acquiesced. If the agency
830 immediately suspends or immediately terminates a provider under
831 this subsection, the agency shall issue an immediate suspension
832 or immediate termination order as provided in subsection (16).
833 (16) The agency shall impose any of the following sanctions
834 or disincentives on a provider or a person for any of the acts
835 described in subsection (15):
836 (a) Suspension for a specific period of time of not more
837 than 1 year. Suspension shall preclude participation in the
838 Medicaid program, which includes any action that results in a
839 claim for payment to the Medicaid program as a result of
840 furnishing, supervising a person who is furnishing, or causing a
841 person to furnish goods or services.
842 (b) Termination for a specific period of time of from more
843 than 1 year to 20 years. Termination shall preclude
844 participation in the Medicaid program, which includes any action
845 that results in a claim for payment to the Medicaid program as a
846 result of furnishing, supervising a person who is furnishing, or
847 causing a person to furnish goods or services.
848 (c) Imposition of a fine of up to $5,000 for each
849 violation. Each day that an ongoing violation continues, such as
850 refusing to furnish Medicaid-related records or refusing access
851 to records, is considered, for the purposes of this section, to
852 be a separate violation. Each instance of improper billing of a
853 Medicaid recipient; each instance of including an unallowable
854 cost on a hospital or nursing home Medicaid cost report after
855 the provider or authorized representative has been advised in an
856 audit exit conference or previous audit report of the cost
857 unallowability; each instance of furnishing a Medicaid recipient
858 goods or professional services that are inappropriate or of
859 inferior quality as determined by competent peer judgment; each
860 instance of knowingly submitting a materially false or erroneous
861 Medicaid provider enrollment application, request for prior
862 authorization for Medicaid services, drug exception request, or
863 cost report; each instance of inappropriate prescribing of drugs
864 for a Medicaid recipient as determined by competent peer
865 judgment; and each false or erroneous Medicaid claim leading to
866 an overpayment to a provider is considered, for the purposes of
867 this section, to be a separate violation.
868 (d) Immediate suspension, if the agency has received
869 information of patient abuse or neglect, or of any act
870 prohibited by s. 409.920, or any conduct listed in subsection
871 (13) or subsection (14). Upon suspension, the agency must issue
872 an immediate suspension final order, which shall state that the
873 agency has reasonable cause to believe that the provider,
874 person, or entity named is engaging in or has engaged in patient
875 abuse or neglect, any act prohibited by s. 409.920, or any
876 conduct listed in subsection (13) or subsection (14). The order
877 shall provide notice of administrative hearing rights under ss.
878 120.569 and 120.57 and is effective immediately upon notice to
879 the provider, person, or entity under s. 120.569(2)(n).
880 (e) Immediate termination, if the agency has received
881 information of a conviction of patient abuse or neglect, any act
882 prohibited by s. 409.920, or any conduct listed in subsection
883 (13) or subsection (14). Upon termination, the agency must issue
884 an immediate termination order, which shall state that the
885 agency has reasonable cause to believe that the provider,
886 person, or entity named has been convicted of patient abuse or
887 neglect, any act prohibited by s. 409.920, or any conduct listed
888 in subsection (13) or subsection (14). The termination order
889 shall provide notice of administrative hearing rights under ss.
890 120.569 and 120.57 and is effective immediately upon notice to
891 the provider, person, or entity.
892 (f)(e) A fine, not to exceed $10,000, for a violation of
893 paragraph (15)(i).
894 (g)(f) Imposition of liens against provider assets,
895 including, but not limited to, financial assets and real
896 property, not to exceed the amount of fines or recoveries
897 sought, upon entry of an order determining that such moneys are
898 due or recoverable.
899 (h)(g) Prepayment reviews of claims for a specified period
900 of time.
901 (i)(h) Comprehensive followup reviews of providers every 6
902 months to ensure that they are billing Medicaid correctly.
903 (j)(i) Corrective-action plans that would remain in effect
904 for providers for up to 3 years and that would be monitored by
905 the agency every 6 months while in effect.
906 (k)(j) Other remedies as permitted by law to effect the
907 recovery of a fine or overpayment.
908
909 The Secretary of Health Care Administration may make a
910 determination that imposition of a sanction or disincentive is
911 not in the best interest of the Medicaid program, in which case
912 a sanction or disincentive shall not be imposed.
913 (17) In determining the appropriate administrative sanction
914 to be applied, or the duration of any suspension or termination,
915 the agency shall consider:
916 (a) The seriousness and extent of the violation or
917 violations.
918 (b) Any prior history of violations by the provider
919 relating to the delivery of health care programs which resulted
920 in either a criminal conviction or in administrative sanction or
921 penalty.
922 (c) Evidence of continued violation within the provider’s
923 management control of Medicaid statutes, rules, regulations, or
924 policies after written notification to the provider of improper
925 practice or instance of violation.
926 (d) The effect, if any, on the quality of medical care
927 provided to Medicaid recipients as a result of the acts of the
928 provider.
929 (e) Any action by a licensing agency respecting the
930 provider in any state in which the provider operates or has
931 operated.
932 (f) The apparent impact on access by recipients to Medicaid
933 services if the provider is suspended or terminated, in the best
934 judgment of the agency.
935
936 The agency shall document the basis for all sanctioning actions
937 and recommendations.
938 (18) The agency may take action to sanction, suspend, or
939 terminate a particular provider working for a group provider,
940 and may suspend or terminate Medicaid participation at a
941 specific location, rather than or in addition to taking action
942 against an entire group.
943 (19) The agency shall establish a process for conducting
944 followup reviews of a sampling of providers who have a history
945 of overpayment under the Medicaid program. This process must
946 consider the magnitude of previous fraud or abuse and the
947 potential effect of continued fraud or abuse on Medicaid costs.
948 (20) In making a determination of overpayment to a
949 provider, the agency must use accepted and valid auditing,
950 accounting, analytical, statistical, or peer-review methods, or
951 combinations thereof. Appropriate statistical methods may
952 include, but are not limited to, sampling and extension to the
953 population, parametric and nonparametric statistics, tests of
954 hypotheses, and other generally accepted statistical methods.
955 Appropriate analytical methods may include, but are not limited
956 to, reviews to determine variances between the quantities of
957 products that a provider had on hand and available to be
958 purveyed to Medicaid recipients during the review period and the
959 quantities of the same products paid for by the Medicaid program
960 for the same period, taking into appropriate consideration sales
961 of the same products to non-Medicaid customers during the same
962 period. In meeting its burden of proof in any administrative or
963 court proceeding, the agency may introduce the results of such
964 statistical methods as evidence of overpayment.
965 (21) When making a determination that an overpayment has
966 occurred, the agency shall prepare and issue an audit report to
967 the provider showing the calculation of overpayments.
968 (22) The audit report, supported by agency work papers,
969 showing an overpayment to a provider constitutes evidence of the
970 overpayment. A provider may not present or elicit testimony,
971 either on direct examination or cross-examination in any court
972 or administrative proceeding, regarding the purchase or
973 acquisition by any means of drugs, goods, or supplies; sales or
974 divestment by any means of drugs, goods, or supplies; or
975 inventory of drugs, goods, or supplies, unless such acquisition,
976 sales, divestment, or inventory is documented by written
977 invoices, written inventory records, or other competent written
978 documentary evidence maintained in the normal course of the
979 provider’s business. Notwithstanding the applicable rules of
980 discovery, all documentation that will be offered as evidence at
981 an administrative hearing on a Medicaid overpayment must be
982 exchanged by all parties at least 14 days before the
983 administrative hearing or must be excluded from consideration.
984 (23)(a) In an audit or investigation of a violation
985 committed by a provider which is conducted pursuant to this
986 section, the agency is entitled to recover all investigative,
987 legal, and expert witness costs if the agency’s findings were
988 not contested by the provider or, if contested, the agency
989 ultimately prevailed.
990 (b) The agency has the burden of documenting the costs,
991 which include salaries and employee benefits and out-of-pocket
992 expenses. The amount of costs that may be recovered must be
993 reasonable in relation to the seriousness of the violation and
994 must be set taking into consideration the financial resources,
995 earning ability, and needs of the provider, who has the burden
996 of demonstrating such factors.
997 (c) The provider may pay the costs over a period to be
998 determined by the agency if the agency determines that an
999 extreme hardship would result to the provider from immediate
1000 full payment. Any default in payment of costs may be collected
1001 by any means authorized by law.
1002 (24) If the agency imposes an administrative sanction
1003 pursuant to subsection (13), subsection (14), or subsection
1004 (15), except paragraphs (15)(e) and (o), upon any provider or
1005 any principal, officer, director, agent, managing employee, or
1006 affiliated person of the provider who is regulated by another
1007 state entity, the agency shall notify that other entity of the
1008 imposition of the sanction within 5 business days. Such
1009 notification must include the provider’s or person’s name and
1010 license number and the specific reasons for sanction.
1011 (25)(a) The agency shall withhold Medicaid payments, in
1012 whole or in part, to a provider upon receipt of reliable
1013 evidence that the circumstances giving rise to the need for a
1014 withholding of payments involve fraud, willful
1015 misrepresentation, or abuse under the Medicaid program, or a
1016 crime committed while rendering goods or services to Medicaid
1017 recipients. If the provider is not paid within 14 days after the
1018 provider receives such evidence, interest shall accrue at a rate
1019 of 10 percent a year it is determined that fraud, willful
1020 misrepresentation, abuse, or a crime did not occur, the payments
1021 withheld must be paid to the provider within 14 days after such
1022 determination with interest at the rate of 10 percent a year.
1023 Any money withheld in accordance with this paragraph shall be
1024 placed in a suspended account, readily accessible to the agency,
1025 so that any payment ultimately due the provider shall be made
1026 within 14 days.
1027 (b) The agency shall deny payment, or require repayment, if
1028 the goods or services were furnished, supervised, or caused to
1029 be furnished by a person who has been convicted of a crime under
1030 subsection (13) or who has been suspended or terminated from the
1031 Medicaid program or Medicare program by the Federal Government
1032 or any state.
1033 (c) Overpayments owed to the agency bear interest at the
1034 rate of 10 percent per year from the date of determination of
1035 the overpayment by the agency, and payment arrangements for
1036 overpayments and fines must be made within 35 days after the
1037 date of the final order at the conclusion of legal proceedings.
1038 A provider who does not enter into or adhere to an agreed-upon
1039 repayment schedule may be terminated by the agency for
1040 nonpayment or partial payment.
1041 (d) The agency, upon entry of a final agency order, a
1042 judgment or order of a court of competent jurisdiction, or a
1043 stipulation or settlement, may collect the moneys owed by all
1044 means allowable by law, including, but not limited to, notifying
1045 any fiscal intermediary of Medicare benefits that the state has
1046 a superior right of payment. Upon receipt of such written
1047 notification, the Medicare fiscal intermediary shall remit to
1048 the state the sum claimed.
1049 (e) The agency may institute amnesty programs to allow
1050 Medicaid providers the opportunity to voluntarily repay
1051 overpayments. The agency may adopt rules to administer such
1052 programs.
1053 (26) The agency may impose administrative sanctions against
1054 a Medicaid recipient, or the agency may seek any other remedy
1055 provided by law, including, but not limited to, the remedies
1056 provided in s. 812.035, if the agency finds that a recipient has
1057 engaged in solicitation in violation of s. 409.920 or that the
1058 recipient has otherwise abused the Medicaid program.
1059 (27) When the Agency for Health Care Administration has
1060 made a probable cause determination and alleged that an
1061 overpayment to a Medicaid provider has occurred, the agency,
1062 after notice to the provider, shall:
1063 (a) Withhold, and continue to withhold during the pendency
1064 of an administrative hearing pursuant to chapter 120, any
1065 medical assistance reimbursement payments until such time as the
1066 overpayment is recovered, unless within 30 days after receiving
1067 notice thereof the provider:
1068 1. Makes repayment in full; or
1069 2. Establishes a repayment plan that is satisfactory to the
1070 Agency for Health Care Administration.
1071 (b) Withhold, and continue to withhold during the pendency
1072 of an administrative hearing pursuant to chapter 120, medical
1073 assistance reimbursement payments if the terms of a repayment
1074 plan are not adhered to by the provider.
1075 (28) Venue for all Medicaid program integrity overpayment
1076 cases shall lie in Leon County, at the discretion of the agency.
1077 (29) Notwithstanding other provisions of law, the agency
1078 and the Medicaid Fraud Control Unit of the Department of Legal
1079 Affairs may review a provider’s Medicaid-related and non
1080 Medicaid-related records in order to determine the total output
1081 of a provider’s practice to reconcile quantities of goods or
1082 services billed to Medicaid with quantities of goods or services
1083 used in the provider’s total practice.
1084 (30) The agency shall terminate a provider’s participation
1085 in the Medicaid program if the provider fails to reimburse an
1086 overpayment or fine that has been determined by final order, not
1087 subject to further appeal, within 35 days after the date of the
1088 final order, unless the provider and the agency have entered
1089 into a repayment agreement.
1090 (31) If a provider requests an administrative hearing
1091 pursuant to chapter 120, such hearing must be conducted within
1092 90 days following assignment of an administrative law judge,
1093 absent exceptionally good cause shown as determined by the
1094 administrative law judge or hearing officer. Upon issuance of a
1095 final order, the outstanding balance of the amount determined to
1096 constitute the overpayment or fine shall become due. If a
1097 provider fails to make payments in full, fails to enter into a
1098 satisfactory repayment plan, or fails to comply with the terms
1099 of a repayment plan or settlement agreement, the agency shall
1100 withhold medical assistance reimbursement payments until the
1101 amount due is paid in full.
1102 (32) Duly authorized agents and employees of the agency
1103 shall have the power to inspect, during normal business hours,
1104 the records of any pharmacy, wholesale establishment, or
1105 manufacturer, or any other place in which drugs and medical
1106 supplies are manufactured, packed, packaged, made, stored, sold,
1107 or kept for sale, for the purpose of verifying the amount of
1108 drugs and medical supplies ordered, delivered, or purchased by a
1109 provider. The agency shall provide at least 2 business days’
1110 prior notice of any such inspection. The notice must identify
1111 the provider whose records will be inspected, and the inspection
1112 shall include only records specifically related to that
1113 provider.
1114 (33) In accordance with federal law, Medicaid recipients
1115 convicted of a crime pursuant to 42 U.S.C. s. 1320a-7b may be
1116 limited, restricted, or suspended from Medicaid eligibility for
1117 a period not to exceed 1 year, as determined by the agency head
1118 or designee.
1119 (34) To deter fraud and abuse in the Medicaid program, the
1120 agency may limit the number of Schedule II and Schedule III
1121 refill prescription claims submitted from a pharmacy provider.
1122 The agency shall limit the allowable amount of reimbursement of
1123 prescription refill claims for Schedule II and Schedule III
1124 pharmaceuticals if the agency or the Medicaid Fraud Control Unit
1125 determines that the specific prescription refill was not
1126 requested by the Medicaid recipient or authorized representative
1127 for whom the refill claim is submitted or was not prescribed by
1128 the recipient’s medical provider or physician. Any such refill
1129 request must be consistent with the original prescription.
1130 (35) The Office of Program Policy Analysis and Government
1131 Accountability shall provide a report to the President of the
1132 Senate and the Speaker of the House of Representatives on a
1133 biennial basis, beginning January 31, 2006, on the agency’s
1134 efforts to prevent, detect, and deter, as well as recover funds
1135 lost to, fraud and abuse in the Medicaid program.
1136 (36) At least three times a year, the agency shall provide
1137 to each Medicaid recipient or his or her representative an
1138 explanation of benefits in the form of a letter that is mailed
1139 to the most recent address of the recipient on the record with
1140 the Department of Children and Family Services. The explanation
1141 of benefits must include the patient’s name, the name of the
1142 health care provider and the address of the location where the
1143 service was provided, a description of all services billed to
1144 Medicaid in terminology that should be understood by a
1145 reasonable person, and information on how to report
1146 inappropriate or incorrect billing to the agency or other law
1147 enforcement entities for review or investigation. At least once
1148 a year, the letter also must include information on how to
1149 report criminal Medicaid fraud, the Medicaid Fraud Control
1150 Unit’s toll-free hotline number, and information about the
1151 rewards available under s. 409.9203. The explanation of benefits
1152 may not be mailed for Medicaid independent laboratory services
1153 as described in s. 409.905(7) or for Medicaid certified match
1154 services as described in ss. 409.9071 and 1011.70.
1155 (37) The agency shall post on its website a current list of
1156 each Medicaid provider, including any principal, officer,
1157 director, agent, managing employee, or affiliated person of the
1158 provider, or any partner or shareholder having an ownership
1159 interest in the provider equal to 5 percent or greater, who has
1160 been terminated for cause from the Medicaid program or
1161 sanctioned under this section. The list must be searchable by a
1162 variety of search parameters and provide for the creation of
1163 formatted lists that may be printed or imported into other
1164 applications, including spreadsheets. The agency shall update
1165 the list at least monthly.
1166 (38) In order to improve the detection of health care
1167 fraud, use technology to prevent and detect fraud, and maximize
1168 the electronic exchange of health care fraud information, the
1169 agency shall:
1170 (a) Compile, maintain, and publish on its website a
1171 detailed list of all state and federal databases that contain
1172 health care fraud information and update the list at least
1173 biannually;
1174 (b) Develop a strategic plan to connect all databases that
1175 contain health care fraud information to facilitate the
1176 electronic exchange of health information between the agency,
1177 the Department of Health, the Department of Law Enforcement, and
1178 the Attorney General’s Office. The plan must include recommended
1179 standard data formats, fraud identification strategies, and
1180 specifications for the technical interface between state and
1181 federal health care fraud databases;
1182 (c) Monitor innovations in health information technology,
1183 specifically as it pertains to Medicaid fraud prevention and
1184 detection; and
1185 (d) Periodically publish policy briefs that highlight
1186 available new technology to prevent or detect health care fraud
1187 and projects implemented by other states, the private sector, or
1188 the Federal Government which use technology to prevent or detect
1189 health care fraud.
1190 Section 8. Subsection (5) is added to section 409.9203,
1191 Florida Statutes, to read:
1192 409.9203 Rewards for reporting Medicaid fraud.—
1193 (5) An employee of the Agency for Health Care
1194 Administration, the Department of Legal Affairs, the Department
1195 of Health, or the Department of Law Enforcement whose job
1196 responsibilities include the prevention, detection, and
1197 prosecution of Medicaid fraud is not eligible to receive a
1198 reward under this section.
1199 Section 9. Subsection (8) is added to section 456.001,
1200 Florida Statutes, to read:
1201 456.001 Definitions.—As used in this chapter, the term:
1202 (8) “Affiliate” or “affiliated person” means any person who
1203 directly or indirectly manages, controls, or oversees the
1204 operation of a corporation or other business entity, regardless
1205 of whether such person is a partner, shareholder, owner,
1206 officer, director, or agent of the entity.
1207 Section 10. Present subsections (7) through (11) of section
1208 456.041, Florida Statutes, are renumbered as subsections (8)
1209 through (12), respectively, a new subsection (7) is added to
1210 that section, and paragraph (c) of subsection (1) and
1211 subsections (2) and (3) of that section are amended, to read:
1212 456.041 Practitioner profile; creation.—
1213 (1)
1214 (c) Within 30 calendar days after receiving an update of
1215 information required for the practitioner’s profile, the
1216 department shall update the practitioner’s profile in accordance
1217 with the requirements of subsection (9) (7).
1218 (2) Beginning July 1, 2010, on the profile published under
1219 subsection (1), the department shall include indicate if the
1220 information provided under s. 456.039(1)(a)7. or s.
1221 456.0391(1)(a)7. and indicate if the information is or is not
1222 corroborated by a criminal history records check conducted
1223 according to this subsection. The department must include in
1224 each practitioner’s profile the following statement: “The
1225 criminal history information, if any exists, may be incomplete.
1226 Federal criminal history information is not available to the
1227 public.” The department, or the board having regulatory
1228 authority over the practitioner acting on behalf of the
1229 department, shall investigate any information received by the
1230 department or the board.
1231 (3) Beginning July 1, 2010, the department shall include in
1232 each practitioner’s profile any open administrative complaint
1233 filed with the department against the practitioner in which
1234 probable cause has been found. The Department of Health shall
1235 include in each practitioner’s practitioner profile that
1236 criminal information that directly relates to the practitioner’s
1237 ability to competently practice his or her profession. The
1238 department must include in each practitioner’s practitioner
1239 profile the following statement: “The criminal history
1240 information, if any exists, may be incomplete; federal criminal
1241 history information is not available to the public.” The
1242 department shall provide in each practitioner profile, for every
1243 final disciplinary action taken against the practitioner, an
1244 easy-to-read narrative description that explains the
1245 administrative complaint filed against the practitioner and the
1246 final disciplinary action imposed on the practitioner. The
1247 department shall include a hyperlink to each final order listed
1248 in its website report of dispositions of recent disciplinary
1249 actions taken against practitioners.
1250 (7) Beginning July 1, 2010, the department shall include in
1251 each practitioner’s profile detailed information about each
1252 arrest related to that practitioner. The department must include
1253 in each practitioner’s profile the following statement: “The
1254 arrest information, if any exists, may be incomplete.”
1255 Section 11. Section 456.0635, Florida Statutes, is amended
1256 to read:
1257 456.0635 Health care Medicaid fraud; disqualification for
1258 license, certificate, or registration.—
1259 (1) Medicaid Fraud in the practice of a health care
1260 profession is prohibited.
1261 (2) Each board within the jurisdiction of the department,
1262 or the department if there is no board, shall refuse to admit a
1263 candidate to any examination and refuse to issue or renew a
1264 license, certificate, or registration to any applicant if the
1265 candidate or applicant or any principal, officer, agent,
1266 managing employee, or affiliated person of the applicant, has
1267 been:
1268 (a) Has been convicted of, or entered a plea of guilty or
1269 nolo contendere to, regardless of adjudication, a felony under
1270 chapter 409, chapter 817, chapter 893, or a similar felony
1271 offense committed in another state or jurisdiction 21 U.S.C. ss.
1272 801-970, or 42 U.S.C. ss. 1395-1396, unless the sentence and any
1273 subsequent period of probation for such conviction or pleas
1274 ended: more than 15 years prior to the date of the application;
1275 1. For felonies of the first or second degree more than 15
1276 years before the date of application.
1277 2. For felonies of the third degree more than 10 years
1278 before the date of application, except for felonies of the third
1279 degree under s. 893.13(6)(a).
1280 3. For felonies of the third degree under s. 893.13(6)(a),
1281 more than 5 years before the date of application.
1282 4. For felonies in which the defendant entered a plea of
1283 guilty or nolo contendere in an agreement with the court to
1284 enter a pretrial intervention or drug diversion program, the
1285 department shall not approve or deny the application for a
1286 license, certificate, or registration until the final resolution
1287 of the case.
1288 (b) Has been convicted of, or entered a plea of guilty or
1289 nolo contendere to, regardless of adjudication, a felony under
1290 21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the
1291 sentence and any subsequent period of probation for such
1292 conviction or plea ended more than 15 years before the date of
1293 the application;
1294 (c)(b) Has been terminated for cause from the Florida
1295 Medicaid program pursuant to s. 409.913, unless the applicant
1296 has been in good standing with the Florida Medicaid program for
1297 the most recent 5 years;
1298 (d)(c) Has been terminated for cause, pursuant to the
1299 appeals procedures established by the state or Federal
1300 Government, from any other state Medicaid program or the federal
1301 Medicare program, unless the applicant has been in good standing
1302 with a state Medicaid program or the federal Medicare program
1303 for the most recent 5 years and the termination occurred at
1304 least 20 years before prior to the date of the application; or.
1305 (e) Is currently listed on the United States Department of
1306 Health and Human Services Office of Inspector General’s List of
1307 Excluded Individuals and Entities.
1308 (3) Each board within the jurisdiction of the department,
1309 or the department if there is no board, shall refuse to renew a
1310 license, certificate, or registration of any applicant if the
1311 candidate or applicant or any principal, officer, agent,
1312 managing employee, or affiliated person of the applicant:
1313 (a) Has been convicted of, or entered a plea of guilty or
1314 nolo contendere to, regardless of adjudication, a felony under:
1315 chapter 409, chapter 817, chapter 893, or a similar felony
1316 offense committed in another state or jurisdiction since July 1,
1317 2009.
1318 (b) Has been convicted of, or entered a plea of guilty or
1319 nolo contendere to, regardless of adjudication, a felony under
1320 21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396 since July 1,
1321 2009.
1322 (c) Has been terminated for cause from the Florida Medicaid
1323 program pursuant to s. 409.913, unless the applicant has been in
1324 good standing with the Florida Medicaid program for the most
1325 recent 5 years.
1326 (d) Has been terminated for cause, pursuant to the appeals
1327 procedures established by the state, from any other state
1328 Medicaid program, unless the applicant has been in good standing
1329 with a state Medicaid program for the most recent 5 years and
1330 the termination occurred at least 20 years before the date of
1331 the application.
1332 (e) Is currently listed on the United States Department of
1333 Health and Human Services Office of Inspector General’s List of
1334 Excluded Individuals and Entities.
1335 (f) For felonies in which the defendant entered a plea of
1336 guilty or nolo contendere in an agreement with the court to
1337 enter a pretrial intervention or drug diversion program, the
1338 department shall not approve or deny the application for a
1339 renewal of a license, certificate, or registration until the
1340 final resolution of the case.
1341 (4)(3) Licensed health care practitioners shall report
1342 allegations of Medicaid fraud to the department, regardless of
1343 the practice setting in which the alleged Medicaid fraud
1344 occurred.
1345 (5)(4) The acceptance by a licensing authority of a
1346 candidate’s relinquishment of a license which is offered in
1347 response to or anticipation of the filing of administrative
1348 charges alleging Medicaid fraud or similar charges constitutes
1349 the permanent revocation of the license.
1350 (6) The department shall adopt rules to administer the
1351 provisions of this section related to denial of licensure
1352 renewal.
1353 Section 12. Paragraph (kk) of subsection (1) of section
1354 456.072, Florida Statutes, is amended to read:
1355 456.072 Grounds for discipline; penalties; enforcement.—
1356 (1) The following acts shall constitute grounds for which
1357 the disciplinary actions specified in subsection (2) may be
1358 taken:
1359 (kk) Being terminated from the state Medicaid program
1360 pursuant to s. 409.913 or, any other state Medicaid program, or
1361 excluded from the federal Medicare program, unless eligibility
1362 to participate in the program from which the practitioner was
1363 terminated has been restored.
1364 Section 13. Subsection (13) of section 456.073, Florida
1365 Statutes, is amended to read:
1366 456.073 Disciplinary proceedings.—Disciplinary proceedings
1367 for each board shall be within the jurisdiction of the
1368 department.
1369 (13) Notwithstanding any provision of law to the contrary,
1370 an administrative complaint against a licensee shall be filed
1371 within 6 years after the time of the incident or occurrence
1372 giving rise to the complaint against the licensee. If such
1373 incident or occurrence involved fraud related to the Medicaid
1374 program, criminal actions, diversion of controlled substances,
1375 sexual misconduct, or impairment by the licensee, this
1376 subsection does not apply to bar initiation of an investigation
1377 or filing of an administrative complaint beyond the 6-year
1378 timeframe. In those cases covered by this subsection in which it
1379 can be shown that fraud, concealment, or intentional
1380 misrepresentation of fact prevented the discovery of the
1381 violation of law, the period of limitations is extended forward,
1382 but in no event to exceed 12 years after the time of the
1383 incident or occurrence.
1384 Section 14. Subsection (1) of section 456.074, Florida
1385 Statutes, is amended to read:
1386 456.074 Certain health care practitioners; immediate
1387 suspension of license.—
1388 (1) The department shall issue an emergency order
1389 suspending the license of any person licensed in a profession as
1390 defined in this chapter under chapter 458, chapter 459, chapter
1391 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter
1392 465, chapter 466, or chapter 484 who pleads guilty to, is
1393 convicted or found guilty of, or who enters a plea of nolo
1394 contendere to, regardless of adjudication, to:
1395 (a) A felony under chapter 409, chapter 812, chapter 817,
1396 or chapter 893, chapter 895, chapter 896, or under 21 U.S.C. ss.
1397 801-970, or under 42 U.S.C. ss. 1395-1396; or
1398 (b) A misdemeanor or felony under 18 U.S.C. s. 669, ss.
1399 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s.
1400 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the
1401 Medicaid program.
1402 Section 15. This act shall take effect July 1, 2010.