Florida Senate - 2013 COMMITTEE AMENDMENT
Bill No. SB 844
Barcode 861804
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/07/2013 .
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The Committee on Health Policy (Grimsley) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 201 - 655
4 and insert:
5 (8)(a) Each provider, or each principal of the provider if
6 the provider is a corporation, partnership, association, or
7 other entity, seeking to participate in the Medicaid program
8 must submit a complete set of his or her fingerprints to the
9 agency for the purpose of conducting a criminal history record
10 check. Principals of the provider include any officer, director,
11 billing agent, managing employee, or affiliated person, or any
12 partner or shareholder who has an ownership interest equal to 5
13 percent or more in the provider. However, for a hospital
14 licensed under chapter 395 or a nursing home licensed under
15 chapter 400, principals of the provider are those who meet the
16 definition of a controlling interest under s. 408.803. A
17 director of a not-for-profit corporation or organization is not
18 a principal for purposes of a background investigation as
19 required by this section if the director: serves solely in a
20 voluntary capacity for the corporation or organization, does not
21 regularly take part in the day-to-day operational decisions of
22 the corporation or organization, receives no remuneration from
23 the not-for-profit corporation or organization for his or her
24 service on the board of directors, has no financial interest in
25 the not-for-profit corporation or organization, and has no
26 family members with a financial interest in the not-for-profit
27 corporation or organization; and if the director submits an
28 affidavit, under penalty of perjury, to this effect to the
29 agency and the not-for-profit corporation or organization
30 submits an affidavit, under penalty of perjury, to this effect
31 to the agency as part of the corporation’s or organization’s
32 Medicaid provider agreement application. Notwithstanding the
33 above, the agency may require a background check for any person
34 reasonably suspected by the agency to have been convicted of a
35 crime.
36 (a) This subsection does not apply to:
37 1. A hospital licensed under chapter 395;
38 2. A nursing home licensed under chapter 400;
39 3. A hospice licensed under chapter 400;
40 4. An assisted living facility licensed under chapter 429;
41 1.5. A unit of local government, except that requirements
42 of this subsection apply to nongovernmental providers and
43 entities contracting with the local government to provide
44 Medicaid services. The actual cost of the state and national
45 criminal history record checks must be borne by the
46 nongovernmental provider or entity; or
47 2.6. Any business that derives more than 50 percent of its
48 revenue from the sale of goods to the final consumer, and the
49 business or its controlling parent is required to file a form
50 10-K or other similar statement with the Securities and Exchange
51 Commission or has a net worth of $50 million or more.
52 (b) Background screening shall be conducted in accordance
53 with chapter 435 and s. 408.809. The cost of the state and
54 national criminal record check shall be borne by the provider.
55 (c) Proof of compliance with the requirements of level 2
56 screening under chapter 435 conducted within 12 months before
57 the date the Medicaid provider application is submitted to the
58 agency fulfills the requirements of this subsection.
59 Section 2. Subsections (9), (13), (15), (16), (21), (22),
60 (25), (28), (30) and (31) of section 409.913, Florida Statutes,
61 are amended to read:
62 409.913 Oversight of the integrity of the Medicaid
63 program.—The agency shall operate a program to oversee the
64 activities of Florida Medicaid recipients, and providers and
65 their representatives, to ensure that fraudulent and abusive
66 behavior and neglect of recipients occur to the minimum extent
67 possible, and to recover overpayments and impose sanctions as
68 appropriate. Beginning January 1, 2003, and each year
69 thereafter, the agency and the Medicaid Fraud Control Unit of
70 the Department of Legal Affairs shall submit a joint report to
71 the Legislature documenting the effectiveness of the state’s
72 efforts to control Medicaid fraud and abuse and to recover
73 Medicaid overpayments during the previous fiscal year. The
74 report must describe the number of cases opened and investigated
75 each year; the sources of the cases opened; the disposition of
76 the cases closed each year; the amount of overpayments alleged
77 in preliminary and final audit letters; the number and amount of
78 fines or penalties imposed; any reductions in overpayment
79 amounts negotiated in settlement agreements or by other means;
80 the amount of final agency determinations of overpayments; the
81 amount deducted from federal claiming as a result of
82 overpayments; the amount of overpayments recovered each year;
83 the amount of cost of investigation recovered each year; the
84 average length of time to collect from the time the case was
85 opened until the overpayment is paid in full; the amount
86 determined as uncollectible and the portion of the uncollectible
87 amount subsequently reclaimed from the Federal Government; the
88 number of providers, by type, that are terminated from
89 participation in the Medicaid program as a result of fraud and
90 abuse; and all costs associated with discovering and prosecuting
91 cases of Medicaid overpayments and making recoveries in such
92 cases. The report must also document actions taken to prevent
93 overpayments and the number of providers prevented from
94 enrolling in or reenrolling in the Medicaid program as a result
95 of documented Medicaid fraud and abuse and must include policy
96 recommendations necessary to prevent or recover overpayments and
97 changes necessary to prevent and detect Medicaid fraud. All
98 policy recommendations in the report must include a detailed
99 fiscal analysis, including, but not limited to, implementation
100 costs, estimated savings to the Medicaid program, and the return
101 on investment. The agency must submit the policy recommendations
102 and fiscal analyses in the report to the appropriate estimating
103 conference, pursuant to s. 216.137, by February 15 of each year.
104 The agency and the Medicaid Fraud Control Unit of the Department
105 of Legal Affairs each must include detailed unit-specific
106 performance standards, benchmarks, and metrics in the report,
107 including projected cost savings to the state Medicaid program
108 during the following fiscal year.
109 (9) A Medicaid provider shall retain medical, professional,
110 financial, and business records pertaining to services and goods
111 furnished to a Medicaid recipient and billed to Medicaid for 6 a
112 period of 5 years after the date of furnishing such services or
113 goods. The agency may investigate, review, or analyze such
114 records, which must be made available during normal business
115 hours. However, 24-hour notice must be provided if patient
116 treatment would be disrupted. The provider must keep is
117 responsible for furnishing to the agency, and keeping the agency
118 informed of the location of, the provider’s Medicaid-related
119 records. The authority of the agency to obtain Medicaid-related
120 records from a provider is neither curtailed nor limited during
121 a period of litigation between the agency and the provider.
122 (13) The agency shall immediately terminate participation
123 of a Medicaid provider in the Medicaid program and may seek
124 civil remedies or impose other administrative sanctions against
125 a Medicaid provider, if the provider or any principal, officer,
126 director, agent, managing employee, or affiliated person of the
127 provider, or any partner or shareholder having an ownership
128 interest in the provider equal to 5 percent or greater, has been
129 convicted of a criminal offense under federal law or the law of
130 any state relating to the practice of the provider’s profession,
131 or a criminal offense listed under s. 409.907(10), s.
132 408.809(4), or s. 435.04(2) has been:
133 (a) Convicted of a criminal offense related to the delivery
134 of any health care goods or services, including the performance
135 of management or administrative functions relating to the
136 delivery of health care goods or services;
137 (b) Convicted of a criminal offense under federal law or
138 the law of any state relating to the practice of the provider’s
139 profession; or
140 (c) Found by a court of competent jurisdiction to have
141 neglected or physically abused a patient in connection with the
142 delivery of health care goods or services. If the agency
143 determines that the a provider did not participate or acquiesce
144 in the an offense specified in paragraph (a), paragraph (b), or
145 paragraph (c), termination will not be imposed. If the agency
146 effects a termination under this subsection, the agency shall
147 take final agency action issue an immediate final order pursuant
148 to s. 120.569(2)(n).
149 (15) The agency shall seek a remedy provided by law,
150 including, but not limited to, any remedy provided in
151 subsections (13) and (16) and s. 812.035, if:
152 (a) The provider’s license has not been renewed, or has
153 been revoked, suspended, or terminated, for cause, by the
154 licensing agency of any state;
155 (b) The provider has failed to make available or has
156 refused access to Medicaid-related records to an auditor,
157 investigator, or other authorized employee or agent of the
158 agency, the Attorney General, a state attorney, or the Federal
159 Government;
160 (c) The provider has not furnished or has failed to make
161 available such Medicaid-related records as the agency has found
162 necessary to determine whether Medicaid payments are or were due
163 and the amounts thereof;
164 (d) The provider has failed to maintain medical records
165 made at the time of service, or prior to service if prior
166 authorization is required, demonstrating the necessity and
167 appropriateness of the goods or services rendered;
168 (e) The provider is not in compliance with provisions of
169 Medicaid provider publications that have been adopted by
170 reference as rules in the Florida Administrative Code; with
171 provisions of state or federal laws, rules, or regulations; with
172 provisions of the provider agreement between the agency and the
173 provider; or with certifications found on claim forms or on
174 transmittal forms for electronically submitted claims that are
175 submitted by the provider or authorized representative, as such
176 provisions apply to the Medicaid program;
177 (f) The provider or person who ordered, authorized, or
178 prescribed the care, services, or supplies has furnished, or
179 ordered or authorized the furnishing of, goods or services to a
180 recipient which are inappropriate, unnecessary, excessive, or
181 harmful to the recipient or are of inferior quality;
182 (g) The provider has demonstrated a pattern of failure to
183 provide goods or services that are medically necessary;
184 (h) The provider or an authorized representative of the
185 provider, or a person who ordered, authorized, or prescribed the
186 goods or services, has submitted or caused to be submitted false
187 or a pattern of erroneous Medicaid claims;
188 (i) The provider or an authorized representative of the
189 provider, or a person who has ordered, authorized, or prescribed
190 the goods or services, has submitted or caused to be submitted a
191 Medicaid provider enrollment application, a request for prior
192 authorization for Medicaid services, a drug exception request,
193 or a Medicaid cost report that contains materially false or
194 incorrect information;
195 (j) The provider or an authorized representative of the
196 provider has collected from or billed a recipient or a
197 recipient’s responsible party improperly for amounts that should
198 not have been so collected or billed by reason of the provider’s
199 billing the Medicaid program for the same service;
200 (k) The provider or an authorized representative of the
201 provider has included in a cost report costs that are not
202 allowable under a Florida Title XIX reimbursement plan, after
203 the provider or authorized representative had been advised in an
204 audit exit conference or audit report that the costs were not
205 allowable;
206 (l) The provider is charged by information or indictment
207 with fraudulent billing practices or an offense referenced in
208 subsection (13). The sanction applied for this reason is limited
209 to suspension of the provider’s participation in the Medicaid
210 program for the duration of the indictment unless the provider
211 is found guilty pursuant to the information or indictment;
212 (m) The provider or a person who has ordered, authorized,
213 or prescribed the goods or services is found liable for
214 negligent practice resulting in death or injury to the
215 provider’s patient;
216 (n) The provider fails to demonstrate that it had available
217 during a specific audit or review period sufficient quantities
218 of goods, or sufficient time in the case of services, to support
219 the provider’s billings to the Medicaid program;
220 (o) The provider has failed to comply with the notice and
221 reporting requirements of s. 409.907;
222 (p) The agency has received reliable information of patient
223 abuse or neglect or of any act prohibited by s. 409.920; or
224 (q) The provider has failed to comply with an agreed-upon
225 repayment schedule.
226
227 A provider is subject to sanctions for violations of this
228 subsection as the result of actions or inactions of the
229 provider, or actions or inactions of any principal, officer,
230 director, agent, managing employee, or affiliated person of the
231 provider, or any partner or shareholder having an ownership
232 interest in the provider equal to 5 percent or greater, in which
233 the provider participated or acquiesced.
234 (16) The agency shall impose any of the following sanctions
235 or disincentives on a provider or a person for any of the acts
236 described in subsection (15):
237 (a) Suspension for a specific period of time of not more
238 than 1 year. Suspension precludes shall preclude participation
239 in the Medicaid program, which includes any action that results
240 in a claim for payment to the Medicaid program for as a result
241 of furnishing, supervising a person who is furnishing, or
242 causing a person to furnish goods or services.
243 (b) Termination for a specific period of time ranging of
244 from more than 1 year to 20 years. Termination precludes shall
245 preclude participation in the Medicaid program, which includes
246 any action that results in a claim for payment to the Medicaid
247 program for as a result of furnishing, supervising a person who
248 is furnishing, or causing a person to furnish goods or services.
249 (c) Imposition of a fine of up to $5,000 for each
250 violation. Each day that an ongoing violation continues, such as
251 refusing to furnish Medicaid-related records or refusing access
252 to records, is considered, for the purposes of this section, to
253 be a separate violation. Each instance of improper billing of a
254 Medicaid recipient; each instance of including an unallowable
255 cost on a hospital or nursing home Medicaid cost report after
256 the provider or authorized representative has been advised in an
257 audit exit conference or previous audit report of the cost
258 unallowability; each instance of furnishing a Medicaid recipient
259 goods or professional services that are inappropriate or of
260 inferior quality as determined by competent peer judgment; each
261 instance of knowingly submitting a materially false or erroneous
262 Medicaid provider enrollment application, request for prior
263 authorization for Medicaid services, drug exception request, or
264 cost report; each instance of inappropriate prescribing of drugs
265 for a Medicaid recipient as determined by competent peer
266 judgment; and each false or erroneous Medicaid claim leading to
267 an overpayment to a provider is considered, for the purposes of
268 this section, to be a separate violation.
269 (d) Immediate suspension, if the agency has received
270 information of patient abuse or neglect or of any act prohibited
271 by s. 409.920. Upon suspension, the agency must issue an
272 immediate final order under s. 120.569(2)(n).
273 (e) A fine, not to exceed $10,000, for a violation of
274 paragraph (15)(i).
275 (f) Imposition of liens against provider assets, including,
276 but not limited to, financial assets and real property, not to
277 exceed the amount of fines or recoveries sought, upon entry of
278 an order determining that such moneys are due or recoverable.
279 (g) Prepayment reviews of claims for a specified period of
280 time.
281 (h) Comprehensive followup reviews of providers every 6
282 months to ensure that they are billing Medicaid correctly.
283 (i) Corrective-action plans that would remain in effect for
284 providers for up to 3 years and that are would be monitored by
285 the agency every 6 months while in effect.
286 (j) Other remedies as permitted by law to effect the
287 recovery of a fine or overpayment.
288
289 If a provider voluntarily relinquishes its Medicaid provider
290 number or an associated license, or allows the associated
291 licensure to expire after receiving written notice that the
292 agency is conducting, or has conducted, an audit, survey,
293 inspection, or investigation and that a sanction of suspension
294 or termination will or would be imposed for noncompliance
295 discovered as a result of the audit, survey, inspection, or
296 investigation, the agency shall impose the sanction of
297 termination for cause against the provider. The Secretary of
298 Health Care Administration may make a determination that
299 imposition of a sanction or disincentive is not in the best
300 interest of the Medicaid program, in which case a sanction or
301 disincentive may shall not be imposed.
302 (21) When making a determination that an overpayment has
303 occurred, the agency shall prepare and issue an audit report to
304 the provider showing the calculation of overpayments. The
305 agency’s determination must be based solely upon information
306 available to it before issuance of the audit report and, in the
307 case of documentation obtained to substantiate claims for
308 Medicaid reimbursement, based solely upon contemporaneous
309 records.
310 (22) The audit report, supported by agency work papers,
311 showing an overpayment to a provider constitutes evidence of the
312 overpayment. A provider may not present or elicit testimony,
313 either on direct examination or cross-examination in any court
314 or administrative proceeding, regarding the purchase or
315 acquisition by any means of drugs, goods, or supplies; sales or
316 divestment by any means of drugs, goods, or supplies; or
317 inventory of drugs, goods, or supplies, unless such acquisition,
318 sales, divestment, or inventory is documented by written
319 invoices, written inventory records, or other competent written
320 documentary evidence maintained in the normal course of the
321 provider’s business. A provider may not present records to
322 contest an overpayment or sanction unless such records are
323 contemporaneous and, if requested during the audit process, were
324 furnished to the agency or its agent upon request or were
325 furnished within 30 days after the provider received the final
326 audit report. This limitation does not apply to Medicaid cost
327 report audits. Notwithstanding the applicable rules of
328 discovery, all documentation to that will be offered as evidence
329 at an administrative hearing on a Medicaid overpayment or an
330 administrative sanction must be exchanged by all parties at
331 least 14 days before the administrative hearing or must be
332 excluded from consideration.
333 (25)(a) The agency shall withhold Medicaid payments, in
334 whole or in part, to a provider upon receipt of reliable
335 evidence that the circumstances giving rise to the need for a
336 withholding of payments involve fraud, willful
337 misrepresentation, or abuse under the Medicaid program, or a
338 crime committed while rendering goods or services to Medicaid
339 recipients. If it is determined that fraud, willful
340 misrepresentation, abuse, or a crime did not occur, the payments
341 withheld must be paid to the provider within 14 days after such
342 determination with interest at the rate of 10 percent a year.
343 Any money withheld in accordance with this paragraph shall be
344 placed in a suspended account, readily accessible to the agency,
345 so that any payment ultimately due the provider shall be made
346 within 14 days.
347 (b) The agency shall deny payment, or require repayment, if
348 the goods or services were furnished, supervised, or caused to
349 be furnished by a person who has been suspended or terminated
350 from the Medicaid program or Medicare program by the Federal
351 Government or any state.
352 (c) Overpayments owed to the agency bear interest at the
353 rate of 10 percent per year from the date of determination of
354 the overpayment by the agency, and payment arrangements must be
355 made within 30 days after the date of the final order, which is
356 not subject to further appeal, and all appeals have been
357 exhausted at the conclusion of legal proceedings. A provider who
358 does not enter into or adhere to an agreed-upon repayment
359 schedule may be terminated by the agency for nonpayment or
360 partial payment.
361 (d) The agency, upon entry of a final agency order, a
362 judgment or order of a court of competent jurisdiction, or a
363 stipulation or settlement, may collect the moneys owed by all
364 means allowable by law, including, but not limited to, notifying
365 any fiscal intermediary of Medicare benefits that the state has
366 a superior right of payment. Upon receipt of such written
367 notification, the Medicare fiscal intermediary shall remit to
368 the state the sum claimed.
369 (e) The agency may institute amnesty programs to allow
370 Medicaid providers the opportunity to voluntarily repay
371 overpayments. The agency may adopt rules to administer such
372 programs.
373 (28) Venue for all Medicaid program integrity overpayment
374 cases lies shall lie in Leon County, at the discretion of the
375 agency.
376
377 ================= T I T L E A M E N D M E N T ================
378 And the title is amended as follows:
379 Delete lines 13 - 21
380 and insert:
381 409.913, F.S.; increasing the number of years a