Florida Senate - 2013                                    SB 1358
       By Senator Flores
       37-01148A-13                                          20131358__
    1                        A bill to be entitled                      
    2         An act relating to audits of pharmacy records;
    3         amending s. 465.188, F.S.; revising requirements for
    4         the audit of Medicaid-related pharmacy records;
    5         requiring that audits of third-party payor and third
    6         party administrator records of pharmacy permittees be
    7         conducted in specified manners; providing that claims
    8         containing certain clerical or recordkeeping errors
    9         are not subject to financial recoupment under certain
   10         circumstances; specifying that certain audit criteria
   11         apply to third-party claims submitted after a
   12         specified date; prohibiting certain accounting
   13         practices used for calculating the recoupment of
   14         claims; prohibiting the audit criteria from requiring
   15         the recoupment of claims except under certain
   16         circumstances; providing procedures for review and
   17         appeal of third-party payor and third-party
   18         administrator audits; providing an effective date.
   20  Be It Enacted by the Legislature of the State of Florida:
   22         Section 1. Section 465.188, Florida Statutes, is amended to
   23  read:
   24         465.188 Financial Medicaid audits of pharmacies.—
   25         (1) Notwithstanding any provision of other law, when an
   26  audit of the Medicaid-related, third-party payor, or third-party
   27  administrator records of a pharmacy permittee licensed under
   28  this chapter 465 is conducted, such audit must be conducted as
   29  provided in this section.
   30         (a) The agency or other entity conducting the audit must
   31  give the pharmacist at least 1 week’s prior notice of the
   32  initial audit for each audit cycle.
   33         (b) An audit must be conducted by a pharmacist licensed in
   34  this state.
   35         (c) Any clerical or recordkeeping error, such as a
   36  typographical error, scrivener’s error, or computer error
   37  regarding a document or record required under the third-party
   38  payor, third-party administrator, or Medicaid program does not
   39  constitute a willful violation and, without proof of intent to
   40  commit fraud, is not subject to criminal penalties without proof
   41  of intent to commit fraud. A claim is not subject to financial
   42  recoupment if, except for such typographical, scrivener’s,
   43  computer, or other clerical or recordkeeping error, the claim is
   44  an otherwise valid claim.
   45         (d) A pharmacist may use the physician’s record or other
   46  order for drugs or medicinal supplies written or transmitted by
   47  any means of communication for purposes of validating the
   48  pharmacy record with respect to orders or refills of a legend or
   49  narcotic drug.
   50         (e) A finding of an overpayment or underpayment must be
   51  based on the actual overpayment or underpayment and may not be a
   52  projection based on the number of patients served having a
   53  similar diagnosis or on the number of similar orders or refills
   54  for similar drugs.
   55         (f) Each pharmacy shall be audited under the same standards
   56  and parameters.
   57         (g) A pharmacist must be allowed at least 10 days in which
   58  to produce documentation to address any discrepancy found during
   59  an audit.
   60         (h) The period covered by an audit may not exceed 1
   61  calendar year.
   62         (i) An audit may not be scheduled during the first 5 days
   63  of any month due to the high volume of prescriptions filled
   64  during that time.
   65         (j) The audit report must be delivered to the pharmacist
   66  within 90 days after conclusion of the audit. A final audit
   67  report shall be delivered to the pharmacist within 6 months
   68  after receipt of the preliminary audit report or final appeal,
   69  as provided for in subsection (2), whichever is later.
   70         (k) The audit criteria set forth in this section apply
   71  applies only to audits of Medicaid claims submitted for payment
   72  after subsequent to July 11, 2003, and to third-party claims
   73  submitted for payment after July 1, 2011. Notwithstanding any
   74  other provision of in this section, the agency or other entity
   75  conducting the audit may shall not use the accounting practice
   76  of extrapolation in calculating penalties or recoupment for
   77  Medicaid, third-party payor, or third-party administrator
   78  audits.
   79         (l) The audit criteria may not subject a claim to financial
   80  recoupment except in those circumstances when recoupment is
   81  required by law.
   82         (2) The Agency for Health Care Administration, in the case
   83  of a Medicaid-related audit, or the third-party payor or third
   84  party administrator contracting with the pharmacy, in the case
   85  of a third-party payor or third-party administrator audit, shall
   86  establish a process under which a pharmacist may obtain a
   87  preliminary review of an audit report and may appeal an
   88  unfavorable audit report without the necessity of obtaining
   89  legal counsel. The preliminary review and appeal may be
   90  conducted by an ad hoc peer review panel, appointed by the
   91  agency in the case of a Medicaid-related audit, or appointed by
   92  the third-party payor or third-party administrator contracting
   93  with the pharmacy in the case of a third-party payor or third
   94  party administrator audit, which consists of pharmacists who
   95  maintain an active practice. If, following the preliminary
   96  review, the agency or review panel finds that an unfavorable
   97  audit report is unsubstantiated, the agency, in the case of a
   98  Medicaid-related audit, or the third-party payor or third-party
   99  administrator contracting with the pharmacy, in the case of a
  100  third-party payor or third-party administrator audit, shall
  101  dismiss the audit report without the necessity of any further
  102  proceedings.
  103         (3) This section does not apply to investigative audits
  104  conducted by the Medicaid Fraud Control Unit of the Department
  105  of Legal Affairs.
  106         (4) This section does not apply to any investigative audit
  107  conducted by the Agency for Health Care Administration when the
  108  agency has reliable evidence that the claim that is the subject
  109  of the audit involves fraud, willful misrepresentation, or abuse
  110  under the Medicaid program.
  111         Section 2. This act shall take effect upon becoming a law.