Florida Senate - 2013 COMMITTEE AMENDMENT
Bill No. CS for SB 844
Barcode 531582
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/17/2013 .
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Appropriations Subcommittee on Health and Human Services
(Grimsley) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (c) of subsection (3) of section
6 409.907, Florida Statutes, is amended, paragraph (k) is added to
7 that subsection, and subsections (6) through (9) of that section
8 are amended, to read:
9 409.907 Medicaid provider agreements.—The agency may make
10 payments for medical assistance and related services rendered to
11 Medicaid recipients only to an individual or entity who has a
12 provider agreement in effect with the agency, who is performing
13 services or supplying goods in accordance with federal, state,
14 And local law, and who agrees that no person shall, on the
15 grounds of handicap, race, color, or national origin, or for any
16 other reason, be subjected to discrimination under any program
17 or activity for which the provider receives payment from the
18 agency.
19 (3) The provider agreement developed by the agency, in
20 addition to the requirements specified in subsections (1) and
21 (2), shall require the provider to:
22 (c) Retain all medical and Medicaid-related records for 6 a
23 period of 5 years to satisfy all necessary inquiries by the
24 agency.
25 (k) Report a change in any principal of the provider,
26 including any officer, director, agent, managing employee, or
27 affiliated person, or any partner or shareholder who has an
28 ownership interest equal to 5 percent or more in the provider,
29 to the agency in writing within 30 days after the change occurs.
30 For a hospital licensed under chapter 395 or a nursing home
31 licensed under part II of chapter 400, a principal of the
32 provider is one who meets the definition of a controlling
33 interest under s. 408.803.
34 (6) A Medicaid provider agreement may be revoked, at the
35 option of the agency, due to as the result of a change of
36 ownership of any facility, association, partnership, or other
37 entity named as the provider in the provider agreement.
38 (a) If there is In the event of a change of ownership, the
39 transferor remains liable for all outstanding overpayments,
40 administrative fines, and any other moneys owed to the agency
41 before the effective date of the change of ownership. In
42 addition to the continuing liability of the transferor, The
43 transferee is also liable to the agency for all outstanding
44 overpayments identified by the agency on or before the effective
45 date of the change of ownership. For purposes of this
46 subsection, the term “outstanding overpayment” includes any
47 amount identified in a preliminary audit report issued to the
48 transferor by the agency on or before the effective date of the
49 change of ownership. In the event of a change of ownership for a
50 skilled nursing facility or intermediate care facility, the
51 Medicaid provider agreement shall be assigned to the transferee
52 if the transferee meets all other Medicaid provider
53 qualifications. In the event of a change of ownership involving
54 a skilled nursing facility licensed under part II of chapter
55 400, liability for all outstanding overpayments, administrative
56 fines, and any moneys owed to the agency before the effective
57 date of the change of ownership shall be determined in
58 accordance with s. 400.179.
59 (b) At least 60 days before the anticipated date of the
60 change of ownership, the transferor must shall notify the agency
61 of the intended change of ownership and the transferee must
62 shall submit to the agency a Medicaid provider enrollment
63 application. If a change of ownership occurs without compliance
64 with the notice requirements of this subsection, the transferor
65 and transferee are shall be jointly and severally liable for all
66 overpayments, administrative fines, and other moneys due to the
67 agency, regardless of whether the agency identified the
68 overpayments, administrative fines, or other moneys before or
69 after the effective date of the change of ownership. The agency
70 may not approve a transferee’s Medicaid provider enrollment
71 application if the transferee or transferor has not paid or
72 agreed in writing to a payment plan for all outstanding
73 overpayments, administrative fines, and other moneys due to the
74 agency. This subsection does not preclude the agency from
75 seeking any other legal or equitable remedies available to the
76 agency for the recovery of moneys owed to the Medicaid program.
77 In the event of a change of ownership involving a skilled
78 nursing facility licensed under part II of chapter 400,
79 liability for all outstanding overpayments, administrative
80 fines, and any moneys owed to the agency before the effective
81 date of the change of ownership shall be determined in
82 accordance with s. 400.179 if the Medicaid provider enrollment
83 application for change of ownership is submitted before the
84 change of ownership.
85 (c) As used in this subsection, the term:
86 1. “Administrative fines” includes any amount identified in
87 a notice of a monetary penalty or fine which has been issued by
88 the agency or other regulatory or licensing agency that governs
89 the provider.
90 2. “Outstanding overpayment” includes any amount identified
91 in a preliminary audit report issued to the transferor by the
92 agency on or before the effective date of a change of ownership.
93 (7) The agency may require, As a condition of participating
94 in the Medicaid program and before entering into the provider
95 agreement, the agency may require that the provider to submit
96 information, in an initial and any required renewal
97 applications, concerning the professional, business, and
98 personal background of the provider and permit an onsite
99 inspection of the provider’s service location by agency staff or
100 other personnel designated by the agency to perform this
101 function. Before entering into a provider agreement, the agency
102 may shall perform an a random onsite inspection, within 60 days
103 after receipt of a fully complete new provider’s application, of
104 the provider’s service location prior to making its first
105 payment to the provider for Medicaid services to determine the
106 applicant’s ability to provide the services in compliance with
107 the Medicaid program and professional regulations that the
108 applicant is proposing to provide for Medicaid reimbursement.
109 The agency is not required to perform an onsite inspection of a
110 provider or program that is licensed by the agency, that
111 provides services under waiver programs for home and community-
112 based services, or that is licensed as a medical foster home by
113 the Department of Children and Family Services. As a continuing
114 condition of participation in the Medicaid program, a provider
115 must shall immediately notify the agency of any current or
116 pending bankruptcy filing. Before entering into the provider
117 agreement, or as a condition of continuing participation in the
118 Medicaid program, the agency may also require that Medicaid
119 providers that are reimbursed on a fee-for-services basis or fee
120 schedule basis that which is not cost-based to, post a surety
121 bond not to exceed $50,000 or the total amount billed by the
122 provider to the program during the current or most recent
123 calendar year, whichever is greater. For new providers, the
124 amount of the surety bond shall be determined by the agency
125 based on the provider’s estimate of its first year’s billing. If
126 the provider’s billing during the first year exceeds the bond
127 amount, the agency may require the provider to acquire an
128 additional bond equal to the actual billing level of the
129 provider. A provider’s bond need shall not exceed $50,000 if a
130 physician or group of physicians licensed under chapter 458,
131 chapter 459, or chapter 460 has a 50 percent or greater
132 ownership interest in the provider or if the provider is an
133 assisted living facility licensed under chapter 429. The bonds
134 permitted by this section are in addition to the bonds
135 referenced in s. 400.179(2)(d). If the provider is a
136 corporation, partnership, association, or other entity, the
137 agency may require the provider to submit information concerning
138 the background of that entity and of any principal of the
139 entity, including any partner or shareholder having an ownership
140 interest in the entity equal to 5 percent or greater, and any
141 treating provider who participates in or intends to participate
142 in Medicaid through the entity. The information must include:
143 (a) Proof of holding a valid license or operating
144 certificate, as applicable, if required by the state or local
145 jurisdiction in which the provider is located or if required by
146 the Federal Government.
147 (b) Information concerning any prior violation, fine,
148 suspension, termination, or other administrative action taken
149 under the Medicaid laws or, rules, or regulations of this state
150 or of any other state or the Federal Government; any prior
151 violation of the laws or, rules, or regulations relating to the
152 Medicare program; any prior violation of the rules or
153 regulations of any other public or private insurer; and any
154 prior violation of the laws or, rules, or regulations of any
155 regulatory body of this or any other state.
156 (c) Full and accurate disclosure of any financial or
157 ownership interest that the provider, or any principal, partner,
158 or major shareholder thereof, may hold in any other Medicaid
159 provider or health care related entity or any other entity that
160 is licensed by the state to provide health or residential care
161 and treatment to persons.
162 (d) If a group provider, identification of all members of
163 the group and attestation that all members of the group are
164 enrolled in or have applied to enroll in the Medicaid program.
165 (8)(a) Each provider, or each principal of the provider if
166 the provider is a corporation, partnership, association, or
167 other entity, seeking to participate in the Medicaid program
168 must submit a complete set of his or her fingerprints to the
169 agency for the purpose of conducting a criminal history record
170 check. Principals of the provider include any officer, director,
171 billing agent, managing employee, or affiliated person, or any
172 partner or shareholder who has an ownership interest equal to 5
173 percent or more in the provider. However, for a hospital
174 licensed under chapter 395 or a nursing home licensed under
175 chapter 400, principals of the provider are those who meet the
176 definition of a controlling interest under s. 408.803. A
177 director of a not-for-profit corporation or organization is not
178 a principal for purposes of a background investigation as
179 required by this section if the director: serves solely in a
180 voluntary capacity for the corporation or organization, does not
181 regularly take part in the day-to-day operational decisions of
182 the corporation or organization, receives no remuneration from
183 the not-for-profit corporation or organization for his or her
184 service on the board of directors, has no financial interest in
185 the not-for-profit corporation or organization, and has no
186 family members with a financial interest in the not-for-profit
187 corporation or organization; and if the director submits an
188 affidavit, under penalty of perjury, to this effect to the
189 agency and the not-for-profit corporation or organization
190 submits an affidavit, under penalty of perjury, to this effect
191 to the agency as part of the corporation’s or organization’s
192 Medicaid provider agreement application. Notwithstanding the
193 above, the agency may require a background check for any person
194 reasonably suspected by the agency to have been convicted of a
195 crime.
196 (a) This subsection does not apply to:
197 1. A hospital licensed under chapter 395;
198 2. A nursing home licensed under chapter 400;
199 3. A hospice licensed under chapter 400;
200 4. An assisted living facility licensed under chapter 429;
201 1.5. A unit of local government, except that requirements
202 of this subsection apply to nongovernmental providers and
203 entities contracting with the local government to provide
204 Medicaid services. The actual cost of the state and national
205 criminal history record checks must be borne by the
206 nongovernmental provider or entity; or
207 2.6. Any business that derives more than 50 percent of its
208 revenue from the sale of goods to the final consumer, and the
209 business or its controlling parent is required to file a form
210 10-K or other similar statement with the Securities and Exchange
211 Commission or has a net worth of $50 million or more.
212 (b) Background screening shall be conducted in accordance
213 with chapter 435 and s. 408.809. The cost of the state and
214 national criminal record check shall be borne by the provider.
215 (c) Proof of compliance with the requirements of level 2
216 screening under chapter 435 conducted within 12 months before
217 the date the Medicaid provider application is submitted to the
218 agency fulfills the requirements of this subsection.
219 (9) Upon receipt of a completed, signed, and dated
220 application, and completion of any necessary background
221 investigation and criminal history record check, the agency must
222 either:
223 (a) Enroll the applicant as a Medicaid provider upon
224 approval of the provider application. The enrollment effective
225 date is shall be the date the agency receives the provider
226 application. With respect to a provider that requires a Medicare
227 certification survey, the enrollment effective date is the date
228 the certification is awarded. With respect to a provider that
229 completes a change of ownership, the effective date is the date
230 the agency received the application, the date the change of
231 ownership was complete, or the date the applicant became
232 eligible to provide services under Medicaid, whichever date is
233 later. With respect to a provider of emergency medical services
234 transportation or emergency services and care, the effective
235 date is the date the services were rendered. Payment for any
236 claims for services provided to Medicaid recipients between the
237 date of receipt of the application and the date of approval is
238 contingent on applying any and all applicable audits and edits
239 contained in the agency’s claims adjudication and payment
240 processing systems. The agency may enroll a provider located
241 outside this the state of Florida if the provider’s location is
242 no more than 50 miles from the Florida state line, if the
243 provider is actively licensed in this state and provides
244 diagnostic services through telecommunications and information
245 technology in order to provide clinical health care at a
246 distance, or if the agency determines a need for that provider
247 type to ensure adequate access to care; or
248 (b) Deny the application if the agency finds that it is in
249 the best interest of the Medicaid program to do so. The agency
250 may consider the factors listed in subsection (10), as well as
251 any other factor that could affect the effective and efficient
252 administration of the program, including, but not limited to,
253 the applicant’s demonstrated ability to provide services,
254 conduct business, and operate a financially viable concern; the
255 current availability of medical care, services, or supplies to
256 recipients, taking into account geographic location and
257 reasonable travel time; the number of providers of the same type
258 already enrolled in the same geographic area; and the
259 credentials, experience, success, and patient outcomes of the
260 provider for the services that it is making application to
261 provide in the Medicaid program. The agency shall deny the
262 application if the agency finds that a provider; any officer,
263 director, agent, managing employee, or affiliated person; or any
264 partner or shareholder having an ownership interest equal to 5
265 percent or greater in the provider if the provider is a
266 corporation, partnership, or other business entity, has failed
267 to pay all outstanding fines or overpayments assessed by final
268 order of the agency or final order of the Centers for Medicare
269 and Medicaid Services, not subject to further appeal, unless the
270 provider agrees to a repayment plan that includes withholding
271 Medicaid reimbursement until the amount due is paid in full.
272 Section 2. Subsection (17) of section 409.910, Florida
273 Statutes, is amended to read:
274 409.910 Responsibility for payments on behalf of Medicaid
275 eligible persons when other parties are liable.—
276 (17) A recipient or his or her legal representative or any
277 person representing, or acting as agent for, a recipient or the
278 recipient’s legal representative, who has notice, excluding
279 notice charged solely by reason of the recording of the lien
280 pursuant to paragraph (6)(c), or who has actual knowledge of the
281 agency’s rights to third-party benefits under this section, who
282 receives any third-party benefit or proceeds therefrom for a
283 covered illness or injury, must is required either to pay the
284 agency, within 60 days after receipt of settlement proceeds, pay
285 the agency the full amount of the third-party benefits, but not
286 more than in excess of the total medical assistance provided by
287 Medicaid, or to place the full amount of the third-party
288 benefits in an interest-bearing a trust account for the benefit
289 of the agency pending an judicial or administrative
290 determination of the agency’s right to the benefits thereto.
291 Proof that any such person had notice or knowledge that the
292 recipient had received medical assistance from Medicaid, and
293 that third-party benefits or proceeds therefrom were in any way
294 related to a covered illness or injury for which Medicaid had
295 provided medical assistance, and that any such person knowingly
296 obtained possession or control of, or used, third-party benefits
297 or proceeds and failed either to pay the agency the full amount
298 required by this section or to hold the full amount of third
299 party benefits or proceeds in an interest-bearing trust account
300 pending an judicial or administrative determination, unless
301 adequately explained, gives rise to an inference that such
302 person knowingly failed to credit the state or its agent for
303 payments received from social security, insurance, or other
304 sources, pursuant to s. 414.39(4)(b), and acted with the intent
305 set forth in s. 812.014(1).
306 (a) A recipient may contest the amount designated as
307 recovered medical expense damages payable to the agency pursuant
308 to the formula specified in paragraph (11)(f) by filing a
309 petition under chapter 120 within 21 days after the date of
310 payment of funds to the agency or after the date of placing the
311 full amount of the third-party benefits in the trust account for
312 the benefit of the agency. The petition shall be filed with the
313 Division of Administrative Hearings. For purposes of chapter
314 120, the payment of funds to the agency or the placement of the
315 full amount of the third-party benefits in the trust account for
316 the benefit of the agency constitutes final agency action and
317 notice thereof. Final order authority for the proceedings
318 specified in this subsection rests with the Division of
319 Administrative Hearings. This procedure is the exclusive method
320 for challenging the amount of third-party benefits payable to
321 the agency.
322 1. In order to successfully challenge the amount payable to
323 the agency, the recipient must prove, by clear and convincing
324 evidence, that a lesser portion of the total recovery should be
325 allocated as reimbursement for past and future medical expenses
326 than the amount calculated by the agency pursuant to the formula
327 set forth in paragraph (11)(f) or that Medicaid provided a
328 lesser amount of medical assistance than that asserted by the
329 agency.
330 2. The agency’s provider processing system reports are
331 admissible as prima facie evidence in substantiating the
332 agency’s claim.
333 3. Venue for all administrative proceedings pursuant to
334 this subsection lies in Leon County, at the discretion of the
335 agency. Venue for all appellate proceedings arising from the
336 administrative proceeding outlined in this subsection lie at the
337 First District Court of Appeal in Leon County, at the discretion
338 of the agency.
339 4. Each party shall bear its own attorney fees and costs
340 for any administrative proceeding conducted pursuant to this
341 paragraph.
342 (b)(a) In cases of suspected criminal violations or
343 fraudulent activity, the agency may take any civil action
344 permitted at law or equity to recover the greatest possible
345 amount, including, without limitation, treble damages under ss.
346 772.11 and 812.035(7).
347 1.(b) The agency may is authorized to investigate and to
348 request appropriate officers or agencies of the state to
349 investigate suspected criminal violations or fraudulent activity
350 related to third-party benefits, including, without limitation,
351 ss. 414.39 and 812.014. Such requests may be directed, without
352 limitation, to the Medicaid Fraud Control Unit of the Office of
353 the Attorney General, or to any state attorney. Pursuant to s.
354 409.913, the Attorney General has primary responsibility to
355 investigate and control Medicaid fraud.
356 2.(c) In carrying out duties and responsibilities related
357 to Medicaid fraud control, the agency may subpoena witnesses or
358 materials within or outside the state and, through any duly
359 designated employee, administer oaths and affirmations and
360 collect evidence for possible use in either civil or criminal
361 judicial proceedings.
362 3.(d) All information obtained and documents prepared
363 pursuant to an investigation of a Medicaid recipient, the
364 recipient’s legal representative, or any other person relating
365 to an allegation of recipient fraud or theft is confidential and
366 exempt from s. 119.07(1):
367 a.1. Until such time as the agency takes final agency
368 action;
369 b.2. Until such time as the Department of Legal Affairs
370 refers the case for criminal prosecution;
371 c.3. Until such time as an indictment or criminal
372 information is filed by a state attorney in a criminal case; or
373 d.4. At all times if otherwise protected by law.
374 Section 3. Subsections (9), (13), (15), (16), (21), (22),
375 (25), (28), (30), and (31) of section 409.913, Florida Statutes,
376 are amended to read:
377 409.913 Oversight of the integrity of the Medicaid
378 program.—The agency shall operate a program to oversee the
379 activities of Florida Medicaid recipients, and providers and
380 their representatives, to ensure that fraudulent and abusive
381 behavior and neglect of recipients occur to the minimum extent
382 possible, and to recover overpayments and impose sanctions as
383 appropriate. Beginning January 1, 2003, and each year
384 thereafter, the agency and the Medicaid Fraud Control Unit of
385 the Department of Legal Affairs shall submit a joint report to
386 the Legislature documenting the effectiveness of the state’s
387 efforts to control Medicaid fraud and abuse and to recover
388 Medicaid overpayments during the previous fiscal year. The
389 report must describe the number of cases opened and investigated
390 each year; the sources of the cases opened; the disposition of
391 the cases closed each year; the amount of overpayments alleged
392 in preliminary and final audit letters; the number and amount of
393 fines or penalties imposed; any reductions in overpayment
394 amounts negotiated in settlement agreements or by other means;
395 the amount of final agency determinations of overpayments; the
396 amount deducted from federal claiming as a result of
397 overpayments; the amount of overpayments recovered each year;
398 the amount of cost of investigation recovered each year; the
399 average length of time to collect from the time the case was
400 opened until the overpayment is paid in full; the amount
401 determined as uncollectible and the portion of the uncollectible
402 amount subsequently reclaimed from the Federal Government; the
403 number of providers, by type, that are terminated from
404 participation in the Medicaid program as a result of fraud and
405 abuse; and all costs associated with discovering and prosecuting
406 cases of Medicaid overpayments and making recoveries in such
407 cases. The report must also document actions taken to prevent
408 overpayments and the number of providers prevented from
409 enrolling in or reenrolling in the Medicaid program as a result
410 of documented Medicaid fraud and abuse and must include policy
411 recommendations necessary to prevent or recover overpayments and
412 changes necessary to prevent and detect Medicaid fraud. All
413 policy recommendations in the report must include a detailed
414 fiscal analysis, including, but not limited to, implementation
415 costs, estimated savings to the Medicaid program, and the return
416 on investment. The agency must submit the policy recommendations
417 and fiscal analyses in the report to the appropriate estimating
418 conference, pursuant to s. 216.137, by February 15 of each year.
419 The agency and the Medicaid Fraud Control Unit of the Department
420 of Legal Affairs each must include detailed unit-specific
421 performance standards, benchmarks, and metrics in the report,
422 including projected cost savings to the state Medicaid program
423 during the following fiscal year.
424 (9) A Medicaid provider shall retain medical, professional,
425 financial, and business records pertaining to services and goods
426 furnished to a Medicaid recipient and billed to Medicaid for 6 a
427 period of 5 years after the date of furnishing such services or
428 goods. The agency may investigate, review, or analyze such
429 records, which must be made available during normal business
430 hours. However, 24-hour notice must be provided if patient
431 treatment would be disrupted. The provider must keep is
432 responsible for furnishing to the agency, and keeping the agency
433 informed of the location of, the provider’s Medicaid-related
434 records. The authority of the agency to obtain Medicaid-related
435 records from a provider is neither curtailed nor limited during
436 a period of litigation between the agency and the provider.
437 (13) The agency shall immediately terminate participation
438 of a Medicaid provider in the Medicaid program and may seek
439 civil remedies or impose other administrative sanctions against
440 a Medicaid provider, if the provider or any principal, officer,
441 director, agent, managing employee, or affiliated person of the
442 provider, or any partner or shareholder having an ownership
443 interest in the provider equal to 5 percent or greater, has been
444 convicted of a criminal offense under federal law or the law of
445 any state relating to the practice of the provider’s profession,
446 or a criminal offense listed under s. 408.809(4), s.
447 409.907(10), or s. 435.04(2) has been:
448 (a) Convicted of a criminal offense related to the delivery
449 of any health care goods or services, including the performance
450 of management or administrative functions relating to the
451 delivery of health care goods or services;
452 (b) Convicted of a criminal offense under federal law or
453 the law of any state relating to the practice of the provider’s
454 profession; or
455 (c) Found by a court of competent jurisdiction to have
456 neglected or physically abused a patient in connection with the
457 delivery of health care goods or services. If the agency
458 determines that the a provider did not participate or acquiesce
459 in the an offense specified in paragraph (a), paragraph (b), or
460 paragraph (c), termination will not be imposed. If the agency
461 effects a termination under this subsection, the agency shall
462 take final agency action issue an immediate final order pursuant
463 to s. 120.569(2)(n).
464 (15) The agency shall seek a remedy provided by law,
465 including, but not limited to, any remedy provided in
466 subsections (13) and (16) and s. 812.035, if:
467 (a) The provider’s license has not been renewed, or has
468 been revoked, suspended, or terminated, for cause, by the
469 licensing agency of any state;
470 (b) The provider has failed to make available or has
471 refused access to Medicaid-related records to an auditor,
472 investigator, or other authorized employee or agent of the
473 agency, the Attorney General, a state attorney, or the Federal
474 Government;
475 (c) The provider has not furnished or has failed to make
476 available such Medicaid-related records as the agency has found
477 necessary to determine whether Medicaid payments are or were due
478 and the amounts thereof;
479 (d) The provider has failed to maintain medical records
480 made at the time of service, or prior to service if prior
481 authorization is required, demonstrating the necessity and
482 appropriateness of the goods or services rendered;
483 (e) The provider is not in compliance with provisions of
484 Medicaid provider publications that have been adopted by
485 reference as rules in the Florida Administrative Code; with
486 provisions of state or federal laws, rules, or regulations; with
487 provisions of the provider agreement between the agency and the
488 provider; or with certifications found on claim forms or on
489 transmittal forms for electronically submitted claims that are
490 submitted by the provider or authorized representative, as such
491 provisions apply to the Medicaid program;
492 (f) The provider or person who ordered, authorized, or
493 prescribed the care, services, or supplies has furnished, or
494 ordered or authorized the furnishing of, goods or services to a
495 recipient which are inappropriate, unnecessary, excessive, or
496 harmful to the recipient or are of inferior quality;
497 (g) The provider has demonstrated a pattern of failure to
498 provide goods or services that are medically necessary;
499 (h) The provider or an authorized representative of the
500 provider, or a person who ordered, authorized, or prescribed the
501 goods or services, has submitted or caused to be submitted false
502 or a pattern of erroneous Medicaid claims;
503 (i) The provider or an authorized representative of the
504 provider, or a person who has ordered, authorized, or prescribed
505 the goods or services, has submitted or caused to be submitted a
506 Medicaid provider enrollment application, a request for prior
507 authorization for Medicaid services, a drug exception request,
508 or a Medicaid cost report that contains materially false or
509 incorrect information;
510 (j) The provider or an authorized representative of the
511 provider has collected from or billed a recipient or a
512 recipient’s responsible party improperly for amounts that should
513 not have been so collected or billed by reason of the provider’s
514 billing the Medicaid program for the same service;
515 (k) The provider or an authorized representative of the
516 provider has included in a cost report costs that are not
517 allowable under a Florida Title XIX reimbursement plan, after
518 the provider or authorized representative had been advised in an
519 audit exit conference or audit report that the costs were not
520 allowable;
521 (l) The provider is charged by information or indictment
522 with fraudulent billing practices or an offense referenced in
523 subsection (13). The sanction applied for this reason is limited
524 to suspension of the provider’s participation in the Medicaid
525 program for the duration of the indictment unless the provider
526 is found guilty pursuant to the information or indictment;
527 (m) The provider or a person who has ordered, authorized,
528 or prescribed the goods or services is found liable for
529 negligent practice resulting in death or injury to the
530 provider’s patient;
531 (n) The provider fails to demonstrate that it had available
532 during a specific audit or review period sufficient quantities
533 of goods, or sufficient time in the case of services, to support
534 the provider’s billings to the Medicaid program;
535 (o) The provider has failed to comply with the notice and
536 reporting requirements of s. 409.907;
537 (p) The agency has received reliable information of patient
538 abuse or neglect or of any act prohibited by s. 409.920; or
539 (q) The provider has failed to comply with an agreed-upon
540 repayment schedule.
541
542 A provider is subject to sanctions for violations of this
543 subsection as the result of actions or inactions of the
544 provider, or actions or inactions of any principal, officer,
545 director, agent, managing employee, or affiliated person of the
546 provider, or any partner or shareholder having an ownership
547 interest in the provider equal to 5 percent or greater, in which
548 the provider participated or acquiesced.
549 (16) The agency shall impose any of the following sanctions
550 or disincentives on a provider or a person for any of the acts
551 described in subsection (15):
552 (a) Suspension for a specific period of time of not more
553 than 1 year. Suspension precludes shall preclude participation
554 in the Medicaid program, which includes any action that results
555 in a claim for payment to the Medicaid program for as a result
556 of furnishing, supervising a person who is furnishing, or
557 causing a person to furnish goods or services.
558 (b) Termination for a specific period of time ranging of
559 from more than 1 year to 20 years. Termination precludes shall
560 preclude participation in the Medicaid program, which includes
561 any action that results in a claim for payment to the Medicaid
562 program for as a result of furnishing, supervising a person who
563 is furnishing, or causing a person to furnish goods or services.
564 (c) Imposition of a fine of up to $5,000 for each
565 violation. Each day that an ongoing violation continues, such as
566 refusing to furnish Medicaid-related records or refusing access
567 to records, is considered, for the purposes of this section, to
568 be a separate violation. Each instance of improper billing of a
569 Medicaid recipient; each instance of including an unallowable
570 cost on a hospital or nursing home Medicaid cost report after
571 the provider or authorized representative has been advised in an
572 audit exit conference or previous audit report of the cost
573 unallowability; each instance of furnishing a Medicaid recipient
574 goods or professional services that are inappropriate or of
575 inferior quality as determined by competent peer judgment; each
576 instance of knowingly submitting a materially false or erroneous
577 Medicaid provider enrollment application, request for prior
578 authorization for Medicaid services, drug exception request, or
579 cost report; each instance of inappropriate prescribing of drugs
580 for a Medicaid recipient as determined by competent peer
581 judgment; and each false or erroneous Medicaid claim leading to
582 an overpayment to a provider is considered, for the purposes of
583 this section, to be a separate violation.
584 (d) Immediate suspension, if the agency has received
585 information of patient abuse or neglect or of any act prohibited
586 by s. 409.920. Upon suspension, the agency must issue an
587 immediate final order under s. 120.569(2)(n).
588 (e) A fine, not to exceed $10,000, for a violation of
589 paragraph (15)(i).
590 (f) Imposition of liens against provider assets, including,
591 but not limited to, financial assets and real property, not to
592 exceed the amount of fines or recoveries sought, upon entry of
593 an order determining that such moneys are due or recoverable.
594 (g) Prepayment reviews of claims for a specified period of
595 time.
596 (h) Comprehensive followup reviews of providers every 6
597 months to ensure that they are billing Medicaid correctly.
598 (i) Corrective-action plans that would remain in effect for
599 providers for up to 3 years and that are would be monitored by
600 the agency every 6 months while in effect.
601 (j) Other remedies as permitted by law to effect the
602 recovery of a fine or overpayment.
603
604 If a provider voluntarily relinquishes its Medicaid provider
605 number or an associated license, or allows the associated
606 licensure to expire after receiving written notice that the
607 agency is conducting, or has conducted, an audit, survey,
608 inspection, or investigation and that a sanction of suspension
609 or termination will or would be imposed for noncompliance
610 discovered as a result of the audit, survey, inspection, or
611 investigation, the agency shall impose the sanction of
612 termination for cause against the provider. The Secretary of
613 Health Care Administration may make a determination that
614 imposition of a sanction or disincentive is not in the best
615 interest of the Medicaid program, in which case a sanction or
616 disincentive may shall not be imposed.
617 (21) When making a determination that an overpayment has
618 occurred, the agency shall prepare and issue an audit report to
619 the provider showing the calculation of overpayments. The
620 agency’s determination must be based solely upon information
621 available to it before issuance of the audit report and, in the
622 case of documentation obtained to substantiate claims for
623 Medicaid reimbursement, based solely upon contemporaneous
624 records.
625 (22) The audit report, supported by agency work papers,
626 showing an overpayment to a provider constitutes evidence of the
627 overpayment. A provider may not present or elicit testimony,
628 either on direct examination or cross-examination in any court
629 or administrative proceeding, regarding the purchase or
630 acquisition by any means of drugs, goods, or supplies; sales or
631 divestment by any means of drugs, goods, or supplies; or
632 inventory of drugs, goods, or supplies, unless such acquisition,
633 sales, divestment, or inventory is documented by written
634 invoices, written inventory records, or other competent written
635 documentary evidence maintained in the normal course of the
636 provider’s business. A provider may not present records to
637 contest an overpayment or sanction unless such records are
638 contemporaneous and, if requested during the audit process, were
639 furnished to the agency or its agent upon request. This
640 limitation does not apply to Medicaid cost report audits.
641 Notwithstanding the applicable rules of discovery, all
642 documentation to that will be offered as evidence at an
643 administrative hearing on a Medicaid overpayment or an
644 administrative sanction must be exchanged by all parties at
645 least 14 days before the administrative hearing or must be
646 excluded from consideration.
647 (25)(a) The agency shall withhold Medicaid payments, in
648 whole or in part, to a provider upon receipt of reliable
649 evidence that the circumstances giving rise to the need for a
650 withholding of payments involve fraud, willful
651 misrepresentation, or abuse under the Medicaid program, or a
652 crime committed while rendering goods or services to Medicaid
653 recipients. If it is determined that fraud, willful
654 misrepresentation, abuse, or a crime did not occur, the payments
655 withheld must be paid to the provider within 14 days after such
656 determination with interest at the rate of 10 percent a year.
657 Amounts not paid within 14 days accrue interest at the rate of
658 10 percent a year, beginning after the 14th day Any money
659 withheld in accordance with this paragraph shall be placed in a
660 suspended account, readily accessible to the agency, so that any
661 payment ultimately due the provider shall be made within 14
662 days.
663 (b) The agency shall deny payment, or require repayment, if
664 the goods or services were furnished, supervised, or caused to
665 be furnished by a person who has been suspended or terminated
666 from the Medicaid program or Medicare program by the Federal
667 Government or any state.
668 (c) Overpayments owed to the agency bear interest at the
669 rate of 10 percent per year from the date of final determination
670 of the overpayment by the agency, and payment arrangements must
671 be made within 30 days after the date of the final order, which
672 is not subject to further appeal at the conclusion of legal
673 proceedings. A provider who does not enter into or adhere to an
674 agreed-upon repayment schedule may be terminated by the agency
675 for nonpayment or partial payment.
676 (d) The agency, upon entry of a final agency order, a
677 judgment or order of a court of competent jurisdiction, or a
678 stipulation or settlement, may collect the moneys owed by all
679 means allowable by law, including, but not limited to, notifying
680 any fiscal intermediary of Medicare benefits that the state has
681 a superior right of payment. Upon receipt of such written
682 notification, the Medicare fiscal intermediary shall remit to
683 the state the sum claimed.
684 (e) The agency may institute amnesty programs to allow
685 Medicaid providers the opportunity to voluntarily repay
686 overpayments. The agency may adopt rules to administer such
687 programs.
688 (28) Venue for all Medicaid program integrity overpayment
689 cases lies shall lie in Leon County, at the discretion of the
690 agency.
691 (30) The agency shall terminate a provider’s participation
692 in the Medicaid program if the provider fails to reimburse an
693 overpayment or pay an agency-imposed fine that has been
694 determined by final order, not subject to further appeal, within
695 30 35 days after the date of the final order, unless the
696 provider and the agency have entered into a repayment agreement.
697 (31) If a provider requests an administrative hearing
698 pursuant to chapter 120, such hearing must be conducted within
699 90 days following assignment of an administrative law judge,
700 absent exceptionally good cause shown as determined by the
701 administrative law judge or hearing officer. Upon issuance of a
702 final order, the outstanding balance of the amount determined to
703 constitute the overpayment and fines is shall become due. If a
704 provider fails to make payments in full, fails to enter into a
705 satisfactory repayment plan, or fails to comply with the terms
706 of a repayment plan or settlement agreement, the agency shall
707 withhold medical assistance reimbursement payments for Medicaid
708 services until the amount due is paid in full.
709 Section 4. Subsection (8) of section 409.920, Florida
710 Statutes, is amended to read:
711 409.920 Medicaid provider fraud.—
712 (8) A person who provides the state, any state agency, any
713 of the state’s political subdivisions, or any agency of the
714 state’s political subdivisions with information about fraud or
715 suspected fraudulent acts fraud by a Medicaid provider,
716 including a managed care organization, is immune from civil
717 liability for libel, slander, or any other relevant tort for
718 providing the information about fraud or suspected fraudulent
719 acts unless the person acted with knowledge that the information
720 was false or with reckless disregard for the truth or falsity of
721 the information. Such immunity extends to reports of fraudulent
722 acts or suspected fraudulent acts conveyed to or from the agency
723 in any manner, including any forum and with any audience as
724 directed by the agency, and includes all discussions subsequent
725 to the report and subsequent inquiries from the agency, unless
726 the person acted with knowledge that the information was false
727 or with reckless disregard for the truth or falsity of the
728 information. As used in this subsection, the term “fraudulent
729 acts” includes actual or suspected fraud and abuse, insurance
730 fraud, licensure fraud, or public assistance fraud, including
731 any fraud-related matters that a provider or health plan is
732 required to report to the agency or a law enforcement agency.
733 Section 5. Subsection (3) of section 624.351, Florida
734 Statutes, is amended, and subsection (8) is added to that
735 section, to read:
736 624.351 Medicaid and Public Assistance Fraud Strike Force.—
737 (3) MEMBERSHIP.—The strike force shall consist of the
738 following 11 members or their designees. A designee shall serve
739 in the same capacity as the designating member who may not
740 designate anyone to serve in their place:
741 (a) The Chief Financial Officer, who shall serve as chair.
742 (b) The Attorney General, who shall serve as vice chair.
743 (c) The executive director of the Department of Law
744 Enforcement.
745 (d) The Secretary of Health Care Administration.
746 (e) The Secretary of Children and Family Services.
747 (f) The State Surgeon General.
748 (g) Five members appointed by the Chief Financial Officer,
749 consisting of two sheriffs, two chiefs of police, and one state
750 attorney. When making these appointments, the Chief Financial
751 Officer shall consider representation by geography, population,
752 ethnicity, and other relevant factors in order to ensure that
753 the membership of the strike force is representative of the
754 state as a whole.
755 (8) EXPIRATION.—This section is repealed June 30, 2014.
756 Section 6. Subsection (3) is added to section 624.352,
757 Florida Statutes, to read:
758 624.352 Interagency agreements to detect and deter Medicaid
759 and public assistance fraud.—
760 (3) This section is repealed June 30, 2014.
761 Section 7. This act shall take effect July 1, 2013.
762
763 ================= T I T L E A M E N D M E N T ================
764 And the title is amended as follows:
765 Delete everything before the enacting clause
766 and insert:
767 A bill to be entitled
768 An act relating to Medicaid; amending s. 409.907,
769 F.S.; increasing the number of years a provider must
770 keep records; adding an additional provision relating
771 to a change in principal that must be included in a
772 Medicaid provider agreement with the Agency for Health
773 Care Administration; adding the definitions of the
774 terms “administrative fines” and “outstanding
775 overpayment”; revising provisions relating to the
776 agency’s onsite inspection responsibilities; revising
777 provisions relating to who is subject to background
778 screening; authorizing the agency to enroll a provider
779 who is licensed in this state and provides diagnostic
780 services through telecommunications technology;
781 amending s. 409.910, F.S.; revising provisions
782 relating to responsibility for Medicaid payments in
783 settlement proceedings; providing procedures for a
784 recipient to contest the amount payable to the agency;
785 amending s. 409.913, F.S.; increasing the number of
786 years a provider must keep records; revising
787 provisions specifying grounds for terminating a
788 provider from the program, for seeking certain
789 remedies for violations, and for imposing certain
790 sanctions; providing a limitation on the information
791 the agency may consider when making a determination of
792 overpayment; specifying the type of records a provider
793 must present to contest an overpayment; deleting the
794 requirement that the agency place payments withheld
795 from a provider in a suspended account and revising
796 when a provider must reimburse overpayments; revising
797 venue requirements; adding provisions relating to the
798 payment of fines; amending s. 409.920, F.S.;
799 clarifying provisions relating to immunity from
800 liability for persons who provide information about
801 Medicaid fraud; amending s. 624.351, F.S.; providing
802 for the expiration of the Medicaid and Public
803 Assistance Fraud Strike Force; amending s. 624.352,
804 F.S.; providing for the expiration of provisions
805 relating to “Strike Force” agreements; providing an
806 effective date.