Bill Text: FL S0844 | 2013 | Regular Session | Comm Sub
Bill Title: Medicaid
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2013-04-29 - Laid on Table, companion bill(s) passed, see CS/CS/HB 939 (Ch. 2013-150), SB 1520 (Ch. 2013-48) [S0844 Detail]
Download: Florida-2013-S0844-Comm_Sub.html
Florida Senate - 2013 CS for CS for SB 844
By the Committees on Appropriations; and Health Policy; and
Senator Grimsley
576-04909-13 2013844c2
1 A bill to be entitled
2 An act relating to Medicaid; amending s. 409.907,
3 F.S.; adding an additional provision relating to a
4 change in principal that must be included in a
5 Medicaid provider agreement with the Agency for Health
6 Care Administration; adding the definitions of the
7 terms “administrative fines” and “outstanding
8 overpayment”; revising provisions relating to the
9 agency’s onsite inspection responsibilities; revising
10 provisions relating to who is subject to background
11 screening; authorizing the agency to enroll a provider
12 who is licensed in this state and provides diagnostic
13 services through telecommunications technology;
14 amending s. 409.910, F.S.; revising provisions
15 relating to responsibility for Medicaid payments in
16 settlement proceedings; providing procedures for a
17 recipient to contest the amount payable to the agency;
18 amending s. 409.913, F.S.; revising provisions
19 specifying grounds for terminating a provider from the
20 program, for seeking certain remedies for violations,
21 and for imposing certain sanctions; providing a
22 limitation on the information the agency may consider
23 when making a determination of overpayment; specifying
24 the type of records a provider must present to contest
25 an overpayment; deleting the requirement that the
26 agency place payments withheld from a provider in a
27 suspended account and revising when a provider must
28 reimburse overpayments; revising venue requirements;
29 adding provisions relating to the payment of fines;
30 amending s. 409.920, F.S.; clarifying provisions
31 relating to immunity from liability for persons who
32 provide information about Medicaid fraud; amending s.
33 624.351, F.S.; providing for the expiration of the
34 Medicaid and Public Assistance Fraud Strike Force;
35 amending s. 624.352, F.S.; providing for the
36 expiration of provisions relating to “Strike Force”
37 agreements; providing an effective date.
38
39 Be It Enacted by the Legislature of the State of Florida:
40
41 Section 1. Paragraph (c) of subsection (3) of section
42 409.907, Florida Statutes, is amended, paragraph (k) is added to
43 that subsection, and subsections (6) through (9) of that section
44 are amended, to read:
45 409.907 Medicaid provider agreements.—The agency may make
46 payments for medical assistance and related services rendered to
47 Medicaid recipients only to an individual or entity who has a
48 provider agreement in effect with the agency, who is performing
49 services or supplying goods in accordance with federal, state,
50 And local law, and who agrees that no person shall, on the
51 grounds of handicap, race, color, or national origin, or for any
52 other reason, be subjected to discrimination under any program
53 or activity for which the provider receives payment from the
54 agency.
55 (3) The provider agreement developed by the agency, in
56 addition to the requirements specified in subsections (1) and
57 (2), shall require the provider to:
58 (c) Retain all medical and Medicaid-related records for a
59 period of 5 years to satisfy all necessary inquiries by the
60 agency.
61 (k) Report a change in any principal of the provider,
62 including any officer, director, agent, managing employee, or
63 affiliated person, or any partner or shareholder who has an
64 ownership interest equal to 5 percent or more in the provider,
65 to the agency in writing within 30 days after the change occurs.
66 For a hospital licensed under chapter 395 or a nursing home
67 licensed under part II of chapter 400, a principal of the
68 provider is one who meets the definition of a controlling
69 interest under s. 408.803.
70 (6) A Medicaid provider agreement may be revoked, at the
71 option of the agency, due to as the result of a change of
72 ownership of any facility, association, partnership, or other
73 entity named as the provider in the provider agreement.
74 (a) If there is In the event of a change of ownership, the
75 transferor remains liable for all outstanding overpayments,
76 administrative fines, and any other moneys owed to the agency
77 before the effective date of the change of ownership. In
78 addition to the continuing liability of the transferor, The
79 transferee is also liable to the agency for all outstanding
80 overpayments identified by the agency on or before the effective
81 date of the change of ownership. For purposes of this
82 subsection, the term “outstanding overpayment” includes any
83 amount identified in a preliminary audit report issued to the
84 transferor by the agency on or before the effective date of the
85 change of ownership. In the event of a change of ownership for a
86 skilled nursing facility or intermediate care facility, the
87 Medicaid provider agreement shall be assigned to the transferee
88 if the transferee meets all other Medicaid provider
89 qualifications. In the event of a change of ownership involving
90 a skilled nursing facility licensed under part II of chapter
91 400, liability for all outstanding overpayments, administrative
92 fines, and any moneys owed to the agency before the effective
93 date of the change of ownership shall be determined in
94 accordance with s. 400.179.
95 (b) At least 60 days before the anticipated date of the
96 change of ownership, the transferor must shall notify the agency
97 of the intended change of ownership and the transferee must
98 shall submit to the agency a Medicaid provider enrollment
99 application. If a change of ownership occurs without compliance
100 with the notice requirements of this subsection, the transferor
101 and transferee are shall be jointly and severally liable for all
102 overpayments, administrative fines, and other moneys due to the
103 agency, regardless of whether the agency identified the
104 overpayments, administrative fines, or other moneys before or
105 after the effective date of the change of ownership. The agency
106 may not approve a transferee’s Medicaid provider enrollment
107 application if the transferee or transferor has not paid or
108 agreed in writing to a payment plan for all outstanding
109 overpayments, administrative fines, and other moneys due to the
110 agency. This subsection does not preclude the agency from
111 seeking any other legal or equitable remedies available to the
112 agency for the recovery of moneys owed to the Medicaid program.
113 In the event of a change of ownership involving a skilled
114 nursing facility licensed under part II of chapter 400,
115 liability for all outstanding overpayments, administrative
116 fines, and any moneys owed to the agency before the effective
117 date of the change of ownership shall be determined in
118 accordance with s. 400.179 if the Medicaid provider enrollment
119 application for change of ownership is submitted before the
120 change of ownership.
121 (c) As used in this subsection, the term:
122 1. “Administrative fines” includes any amount identified in
123 a notice of a monetary penalty or fine which has been issued by
124 the agency or other regulatory or licensing agency that governs
125 the provider.
126 2. “Outstanding overpayment” includes any amount identified
127 in a preliminary audit report issued to the transferor by the
128 agency on or before the effective date of a change of ownership.
129 (7) The agency may require, As a condition of participating
130 in the Medicaid program and before entering into the provider
131 agreement, the agency may require that the provider to submit
132 information, in an initial and any required renewal
133 applications, concerning the professional, business, and
134 personal background of the provider and permit an onsite
135 inspection of the provider’s service location by agency staff or
136 other personnel designated by the agency to perform this
137 function. Before entering into a provider agreement, the agency
138 may shall perform an a random onsite inspection, within 60 days
139 after receipt of a fully complete new provider’s application, of
140 the provider’s service location prior to making its first
141 payment to the provider for Medicaid services to determine the
142 applicant’s ability to provide the services in compliance with
143 the Medicaid program and professional regulations that the
144 applicant is proposing to provide for Medicaid reimbursement.
145 The agency is not required to perform an onsite inspection of a
146 provider or program that is licensed by the agency, that
147 provides services under waiver programs for home and community-
148 based services, or that is licensed as a medical foster home by
149 the Department of Children and Family Services. As a continuing
150 condition of participation in the Medicaid program, a provider
151 must shall immediately notify the agency of any current or
152 pending bankruptcy filing. Before entering into the provider
153 agreement, or as a condition of continuing participation in the
154 Medicaid program, the agency may also require that Medicaid
155 providers that are reimbursed on a fee-for-services basis or fee
156 schedule basis that which is not cost-based to, post a surety
157 bond not to exceed $50,000 or the total amount billed by the
158 provider to the program during the current or most recent
159 calendar year, whichever is greater. For new providers, the
160 amount of the surety bond shall be determined by the agency
161 based on the provider’s estimate of its first year’s billing. If
162 the provider’s billing during the first year exceeds the bond
163 amount, the agency may require the provider to acquire an
164 additional bond equal to the actual billing level of the
165 provider. A provider’s bond need shall not exceed $50,000 if a
166 physician or group of physicians licensed under chapter 458,
167 chapter 459, or chapter 460 has a 50 percent or greater
168 ownership interest in the provider or if the provider is an
169 assisted living facility licensed under chapter 429. The bonds
170 permitted by this section are in addition to the bonds
171 referenced in s. 400.179(2)(d). If the provider is a
172 corporation, partnership, association, or other entity, the
173 agency may require the provider to submit information concerning
174 the background of that entity and of any principal of the
175 entity, including any partner or shareholder having an ownership
176 interest in the entity equal to 5 percent or greater, and any
177 treating provider who participates in or intends to participate
178 in Medicaid through the entity. The information must include:
179 (a) Proof of holding a valid license or operating
180 certificate, as applicable, if required by the state or local
181 jurisdiction in which the provider is located or if required by
182 the Federal Government.
183 (b) Information concerning any prior violation, fine,
184 suspension, termination, or other administrative action taken
185 under the Medicaid laws or, rules, or regulations of this state
186 or of any other state or the Federal Government; any prior
187 violation of the laws or, rules, or regulations relating to the
188 Medicare program; any prior violation of the rules or
189 regulations of any other public or private insurer; and any
190 prior violation of the laws or, rules, or regulations of any
191 regulatory body of this or any other state.
192 (c) Full and accurate disclosure of any financial or
193 ownership interest that the provider, or any principal, partner,
194 or major shareholder thereof, may hold in any other Medicaid
195 provider or health care related entity or any other entity that
196 is licensed by the state to provide health or residential care
197 and treatment to persons.
198 (d) If a group provider, identification of all members of
199 the group and attestation that all members of the group are
200 enrolled in or have applied to enroll in the Medicaid program.
201 (8)(a) Each provider, or each principal of the provider if
202 the provider is a corporation, partnership, association, or
203 other entity, seeking to participate in the Medicaid program
204 must submit a complete set of his or her fingerprints to the
205 agency for the purpose of conducting a criminal history record
206 check. Principals of the provider include any officer, director,
207 billing agent, managing employee, or affiliated person, or any
208 partner or shareholder who has an ownership interest equal to 5
209 percent or more in the provider. However, for a hospital
210 licensed under chapter 395 or a nursing home licensed under
211 chapter 400, principals of the provider are those who meet the
212 definition of a controlling interest under s. 408.803. A
213 director of a not-for-profit corporation or organization is not
214 a principal for purposes of a background investigation as
215 required by this section if the director: serves solely in a
216 voluntary capacity for the corporation or organization, does not
217 regularly take part in the day-to-day operational decisions of
218 the corporation or organization, receives no remuneration from
219 the not-for-profit corporation or organization for his or her
220 service on the board of directors, has no financial interest in
221 the not-for-profit corporation or organization, and has no
222 family members with a financial interest in the not-for-profit
223 corporation or organization; and if the director submits an
224 affidavit, under penalty of perjury, to this effect to the
225 agency and the not-for-profit corporation or organization
226 submits an affidavit, under penalty of perjury, to this effect
227 to the agency as part of the corporation’s or organization’s
228 Medicaid provider agreement application. Notwithstanding the
229 above, the agency may require a background check for any person
230 reasonably suspected by the agency to have been convicted of a
231 crime.
232 (a) This subsection does not apply to:
233 1. A hospital licensed under chapter 395;
234 2. A nursing home licensed under chapter 400;
235 3. A hospice licensed under chapter 400;
236 4. An assisted living facility licensed under chapter 429;
237 1.5. A unit of local government, except that requirements
238 of this subsection apply to nongovernmental providers and
239 entities contracting with the local government to provide
240 Medicaid services. The actual cost of the state and national
241 criminal history record checks must be borne by the
242 nongovernmental provider or entity; or
243 2.6. Any business that derives more than 50 percent of its
244 revenue from the sale of goods to the final consumer, and the
245 business or its controlling parent is required to file a form
246 10-K or other similar statement with the Securities and Exchange
247 Commission or has a net worth of $50 million or more.
248 (b) Background screening shall be conducted in accordance
249 with chapter 435 and s. 408.809. The cost of the state and
250 national criminal record check shall be borne by the provider.
251 (c) Proof of compliance with the requirements of level 2
252 screening under chapter 435 conducted within 12 months before
253 the date the Medicaid provider application is submitted to the
254 agency fulfills the requirements of this subsection.
255 (9) Upon receipt of a completed, signed, and dated
256 application, and completion of any necessary background
257 investigation and criminal history record check, the agency must
258 either:
259 (a) Enroll the applicant as a Medicaid provider upon
260 approval of the provider application. The enrollment effective
261 date is shall be the date the agency receives the provider
262 application. With respect to a provider that requires a Medicare
263 certification survey, the enrollment effective date is the date
264 the certification is awarded. With respect to a provider that
265 completes a change of ownership, the effective date is the date
266 the agency received the application, the date the change of
267 ownership was complete, or the date the applicant became
268 eligible to provide services under Medicaid, whichever date is
269 later. With respect to a provider of emergency medical services
270 transportation or emergency services and care, the effective
271 date is the date the services were rendered. Payment for any
272 claims for services provided to Medicaid recipients between the
273 date of receipt of the application and the date of approval is
274 contingent on applying any and all applicable audits and edits
275 contained in the agency’s claims adjudication and payment
276 processing systems. The agency may enroll a provider located
277 outside this the state of Florida if:
278 1. The provider’s location is no more than 50 miles from
279 the Florida state line;
280 2. The provider is a physician actively licensed in this
281 state and interprets diagnostic testing results through
282 telecommunications and information technology provided from a
283 distance;, or
284 3. The agency determines a need for that provider type to
285 ensure adequate access to care; or
286 (b) Deny the application if the agency finds that it is in
287 the best interest of the Medicaid program to do so. The agency
288 may consider the factors listed in subsection (10), as well as
289 any other factor that could affect the effective and efficient
290 administration of the program, including, but not limited to,
291 the applicant’s demonstrated ability to provide services,
292 conduct business, and operate a financially viable concern; the
293 current availability of medical care, services, or supplies to
294 recipients, taking into account geographic location and
295 reasonable travel time; the number of providers of the same type
296 already enrolled in the same geographic area; and the
297 credentials, experience, success, and patient outcomes of the
298 provider for the services that it is making application to
299 provide in the Medicaid program. The agency shall deny the
300 application if the agency finds that a provider; any officer,
301 director, agent, managing employee, or affiliated person; or any
302 partner or shareholder having an ownership interest equal to 5
303 percent or greater in the provider if the provider is a
304 corporation, partnership, or other business entity, has failed
305 to pay all outstanding fines or overpayments assessed by final
306 order of the agency or final order of the Centers for Medicare
307 and Medicaid Services, not subject to further appeal, unless the
308 provider agrees to a repayment plan that includes withholding
309 Medicaid reimbursement until the amount due is paid in full.
310 Section 2. Subsection (17) of section 409.910, Florida
311 Statutes, is amended to read:
312 409.910 Responsibility for payments on behalf of Medicaid
313 eligible persons when other parties are liable.—
314 (17) A recipient or his or her legal representative or any
315 person representing, or acting as agent for, a recipient or the
316 recipient’s legal representative, who has notice, excluding
317 notice charged solely by reason of the recording of the lien
318 pursuant to paragraph (6)(c), or who has actual knowledge of the
319 agency’s rights to third-party benefits under this section, who
320 receives any third-party benefit or proceeds therefrom for a
321 covered illness or injury, must is required either to pay the
322 agency, within 60 days after receipt of settlement proceeds, pay
323 the agency the full amount of the third-party benefits, but not
324 more than in excess of the total medical assistance provided by
325 Medicaid, or to place the full amount of the third-party
326 benefits in an interest-bearing a trust account for the benefit
327 of the agency pending an judicial or administrative
328 determination of the agency’s right to the benefits thereto.
329 Proof that any such person had notice or knowledge that the
330 recipient had received medical assistance from Medicaid, and
331 that third-party benefits or proceeds therefrom were in any way
332 related to a covered illness or injury for which Medicaid had
333 provided medical assistance, and that any such person knowingly
334 obtained possession or control of, or used, third-party benefits
335 or proceeds and failed either to pay the agency the full amount
336 required by this section or to hold the full amount of third
337 party benefits or proceeds in an interest-bearing trust account
338 pending an judicial or administrative determination, unless
339 adequately explained, gives rise to an inference that such
340 person knowingly failed to credit the state or its agent for
341 payments received from social security, insurance, or other
342 sources, pursuant to s. 414.39(4)(b), and acted with the intent
343 set forth in s. 812.014(1).
344 (a) A recipient may contest the amount designated as
345 recovered medical expense damages payable to the agency pursuant
346 to the formula specified in paragraph (11)(f) by filing a
347 petition under chapter 120 within 21 days after the date of
348 payment of funds to the agency or after the date of placing the
349 full amount of the third-party benefits in the trust account for
350 the benefit of the agency. The petition shall be filed with the
351 Division of Administrative Hearings. For purposes of chapter
352 120, the payment of funds to the agency or the placement of the
353 full amount of the third-party benefits in the trust account for
354 the benefit of the agency constitutes final agency action and
355 notice thereof. Final order authority for the proceedings
356 specified in this subsection rests with the Division of
357 Administrative Hearings. This procedure is the exclusive method
358 for challenging the amount of third-party benefits payable to
359 the agency.
360 1. In order to successfully challenge the amount payable to
361 the agency, the recipient must prove, by clear and convincing
362 evidence, that a lesser portion of the total recovery should be
363 allocated as reimbursement for past and future medical expenses
364 than the amount calculated by the agency pursuant to the formula
365 set forth in paragraph (11)(f) or that Medicaid provided a
366 lesser amount of medical assistance than that asserted by the
367 agency.
368 2. The agency’s provider processing system reports are
369 admissible as prima facie evidence in substantiating the
370 agency’s claim.
371 3. Venue for all administrative proceedings pursuant to
372 this subsection lies in Leon County, at the discretion of the
373 agency. Venue for all appellate proceedings arising from the
374 administrative proceeding outlined in this subsection lie at the
375 First District Court of Appeal in Leon County, at the discretion
376 of the agency.
377 4. Each party shall bear its own attorney fees and costs
378 for any administrative proceeding conducted pursuant to this
379 paragraph.
380 (b)(a) In cases of suspected criminal violations or
381 fraudulent activity, the agency may take any civil action
382 permitted at law or equity to recover the greatest possible
383 amount, including, without limitation, treble damages under ss.
384 772.11 and 812.035(7).
385 1.(b) The agency may is authorized to investigate and to
386 request appropriate officers or agencies of the state to
387 investigate suspected criminal violations or fraudulent activity
388 related to third-party benefits, including, without limitation,
389 ss. 414.39 and 812.014. Such requests may be directed, without
390 limitation, to the Medicaid Fraud Control Unit of the Office of
391 the Attorney General, or to any state attorney. Pursuant to s.
392 409.913, the Attorney General has primary responsibility to
393 investigate and control Medicaid fraud.
394 2.(c) In carrying out duties and responsibilities related
395 to Medicaid fraud control, the agency may subpoena witnesses or
396 materials within or outside the state and, through any duly
397 designated employee, administer oaths and affirmations and
398 collect evidence for possible use in either civil or criminal
399 judicial proceedings.
400 3.(d) All information obtained and documents prepared
401 pursuant to an investigation of a Medicaid recipient, the
402 recipient’s legal representative, or any other person relating
403 to an allegation of recipient fraud or theft is confidential and
404 exempt from s. 119.07(1):
405 a.1. Until such time as the agency takes final agency
406 action;
407 b.2. Until such time as the Department of Legal Affairs
408 refers the case for criminal prosecution;
409 c.3. Until such time as an indictment or criminal
410 information is filed by a state attorney in a criminal case; or
411 d.4. At all times if otherwise protected by law.
412 Section 3. Subsections (9), (13), (15), (16), (21), (22),
413 (25), (28), (30), and (31) of section 409.913, Florida Statutes,
414 are amended to read:
415 409.913 Oversight of the integrity of the Medicaid
416 program.—The agency shall operate a program to oversee the
417 activities of Florida Medicaid recipients, and providers and
418 their representatives, to ensure that fraudulent and abusive
419 behavior and neglect of recipients occur to the minimum extent
420 possible, and to recover overpayments and impose sanctions as
421 appropriate. Beginning January 1, 2003, and each year
422 thereafter, the agency and the Medicaid Fraud Control Unit of
423 the Department of Legal Affairs shall submit a joint report to
424 the Legislature documenting the effectiveness of the state’s
425 efforts to control Medicaid fraud and abuse and to recover
426 Medicaid overpayments during the previous fiscal year. The
427 report must describe the number of cases opened and investigated
428 each year; the sources of the cases opened; the disposition of
429 the cases closed each year; the amount of overpayments alleged
430 in preliminary and final audit letters; the number and amount of
431 fines or penalties imposed; any reductions in overpayment
432 amounts negotiated in settlement agreements or by other means;
433 the amount of final agency determinations of overpayments; the
434 amount deducted from federal claiming as a result of
435 overpayments; the amount of overpayments recovered each year;
436 the amount of cost of investigation recovered each year; the
437 average length of time to collect from the time the case was
438 opened until the overpayment is paid in full; the amount
439 determined as uncollectible and the portion of the uncollectible
440 amount subsequently reclaimed from the Federal Government; the
441 number of providers, by type, that are terminated from
442 participation in the Medicaid program as a result of fraud and
443 abuse; and all costs associated with discovering and prosecuting
444 cases of Medicaid overpayments and making recoveries in such
445 cases. The report must also document actions taken to prevent
446 overpayments and the number of providers prevented from
447 enrolling in or reenrolling in the Medicaid program as a result
448 of documented Medicaid fraud and abuse and must include policy
449 recommendations necessary to prevent or recover overpayments and
450 changes necessary to prevent and detect Medicaid fraud. All
451 policy recommendations in the report must include a detailed
452 fiscal analysis, including, but not limited to, implementation
453 costs, estimated savings to the Medicaid program, and the return
454 on investment. The agency must submit the policy recommendations
455 and fiscal analyses in the report to the appropriate estimating
456 conference, pursuant to s. 216.137, by February 15 of each year.
457 The agency and the Medicaid Fraud Control Unit of the Department
458 of Legal Affairs each must include detailed unit-specific
459 performance standards, benchmarks, and metrics in the report,
460 including projected cost savings to the state Medicaid program
461 during the following fiscal year.
462 (9) A Medicaid provider shall retain medical, professional,
463 financial, and business records pertaining to services and goods
464 furnished to a Medicaid recipient and billed to Medicaid for a
465 period of 5 years after the date of furnishing such services or
466 goods. The agency may investigate, review, or analyze such
467 records, which must be made available during normal business
468 hours. However, 24-hour notice must be provided if patient
469 treatment would be disrupted. The provider must keep is
470 responsible for furnishing to the agency, and keeping the agency
471 informed of the location of, the provider’s Medicaid-related
472 records. The authority of the agency to obtain Medicaid-related
473 records from a provider is neither curtailed nor limited during
474 a period of litigation between the agency and the provider.
475 (13) The agency shall immediately terminate participation
476 of a Medicaid provider in the Medicaid program and may seek
477 civil remedies or impose other administrative sanctions against
478 a Medicaid provider, if the provider or any principal, officer,
479 director, agent, managing employee, or affiliated person of the
480 provider, or any partner or shareholder having an ownership
481 interest in the provider equal to 5 percent or greater, has been
482 convicted of a criminal offense under federal law or the law of
483 any state relating to the practice of the provider’s profession,
484 or a criminal offense listed under s. 408.809(4), s.
485 409.907(10), or s. 435.04(2) has been:
486 (a) Convicted of a criminal offense related to the delivery
487 of any health care goods or services, including the performance
488 of management or administrative functions relating to the
489 delivery of health care goods or services;
490 (b) Convicted of a criminal offense under federal law or
491 the law of any state relating to the practice of the provider’s
492 profession; or
493 (c) Found by a court of competent jurisdiction to have
494 neglected or physically abused a patient in connection with the
495 delivery of health care goods or services. If the agency
496 determines that the a provider did not participate or acquiesce
497 in the an offense specified in paragraph (a), paragraph (b), or
498 paragraph (c), termination will not be imposed. If the agency
499 effects a termination under this subsection, the agency shall
500 take final agency action issue an immediate final order pursuant
501 to s. 120.569(2)(n).
502 (15) The agency shall seek a remedy provided by law,
503 including, but not limited to, any remedy provided in
504 subsections (13) and (16) and s. 812.035, if:
505 (a) The provider’s license has not been renewed, or has
506 been revoked, suspended, or terminated, for cause, by the
507 licensing agency of any state;
508 (b) The provider has failed to make available or has
509 refused access to Medicaid-related records to an auditor,
510 investigator, or other authorized employee or agent of the
511 agency, the Attorney General, a state attorney, or the Federal
512 Government;
513 (c) The provider has not furnished or has failed to make
514 available such Medicaid-related records as the agency has found
515 necessary to determine whether Medicaid payments are or were due
516 and the amounts thereof;
517 (d) The provider has failed to maintain medical records
518 made at the time of service, or prior to service if prior
519 authorization is required, demonstrating the necessity and
520 appropriateness of the goods or services rendered;
521 (e) The provider is not in compliance with provisions of
522 Medicaid provider publications that have been adopted by
523 reference as rules in the Florida Administrative Code; with
524 provisions of state or federal laws, rules, or regulations; with
525 provisions of the provider agreement between the agency and the
526 provider; or with certifications found on claim forms or on
527 transmittal forms for electronically submitted claims that are
528 submitted by the provider or authorized representative, as such
529 provisions apply to the Medicaid program;
530 (f) The provider or person who ordered, authorized, or
531 prescribed the care, services, or supplies has furnished, or
532 ordered or authorized the furnishing of, goods or services to a
533 recipient which are inappropriate, unnecessary, excessive, or
534 harmful to the recipient or are of inferior quality;
535 (g) The provider has demonstrated a pattern of failure to
536 provide goods or services that are medically necessary;
537 (h) The provider or an authorized representative of the
538 provider, or a person who ordered, authorized, or prescribed the
539 goods or services, has submitted or caused to be submitted false
540 or a pattern of erroneous Medicaid claims;
541 (i) The provider or an authorized representative of the
542 provider, or a person who has ordered, authorized, or prescribed
543 the goods or services, has submitted or caused to be submitted a
544 Medicaid provider enrollment application, a request for prior
545 authorization for Medicaid services, a drug exception request,
546 or a Medicaid cost report that contains materially false or
547 incorrect information;
548 (j) The provider or an authorized representative of the
549 provider has collected from or billed a recipient or a
550 recipient’s responsible party improperly for amounts that should
551 not have been so collected or billed by reason of the provider’s
552 billing the Medicaid program for the same service;
553 (k) The provider or an authorized representative of the
554 provider has included in a cost report costs that are not
555 allowable under a Florida Title XIX reimbursement plan, after
556 the provider or authorized representative had been advised in an
557 audit exit conference or audit report that the costs were not
558 allowable;
559 (l) The provider is charged by information or indictment
560 with fraudulent billing practices or an offense referenced in
561 subsection (13). The sanction applied for this reason is limited
562 to suspension of the provider’s participation in the Medicaid
563 program for the duration of the indictment unless the provider
564 is found guilty pursuant to the information or indictment;
565 (m) The provider or a person who has ordered, authorized,
566 or prescribed the goods or services is found liable for
567 negligent practice resulting in death or injury to the
568 provider’s patient;
569 (n) The provider fails to demonstrate that it had available
570 during a specific audit or review period sufficient quantities
571 of goods, or sufficient time in the case of services, to support
572 the provider’s billings to the Medicaid program;
573 (o) The provider has failed to comply with the notice and
574 reporting requirements of s. 409.907;
575 (p) The agency has received reliable information of patient
576 abuse or neglect or of any act prohibited by s. 409.920; or
577 (q) The provider has failed to comply with an agreed-upon
578 repayment schedule.
579
580 A provider is subject to sanctions for violations of this
581 subsection as the result of actions or inactions of the
582 provider, or actions or inactions of any principal, officer,
583 director, agent, managing employee, or affiliated person of the
584 provider, or any partner or shareholder having an ownership
585 interest in the provider equal to 5 percent or greater, in which
586 the provider participated or acquiesced.
587 (16) The agency shall impose any of the following sanctions
588 or disincentives on a provider or a person for any of the acts
589 described in subsection (15):
590 (a) Suspension for a specific period of time of not more
591 than 1 year. Suspension precludes shall preclude participation
592 in the Medicaid program, which includes any action that results
593 in a claim for payment to the Medicaid program for as a result
594 of furnishing, supervising a person who is furnishing, or
595 causing a person to furnish goods or services.
596 (b) Termination for a specific period of time ranging of
597 from more than 1 year to 20 years. Termination precludes shall
598 preclude participation in the Medicaid program, which includes
599 any action that results in a claim for payment to the Medicaid
600 program for as a result of furnishing, supervising a person who
601 is furnishing, or causing a person to furnish goods or services.
602 (c) Imposition of a fine of up to $5,000 for each
603 violation. Each day that an ongoing violation continues, such as
604 refusing to furnish Medicaid-related records or refusing access
605 to records, is considered, for the purposes of this section, to
606 be a separate violation. Each instance of improper billing of a
607 Medicaid recipient; each instance of including an unallowable
608 cost on a hospital or nursing home Medicaid cost report after
609 the provider or authorized representative has been advised in an
610 audit exit conference or previous audit report of the cost
611 unallowability; each instance of furnishing a Medicaid recipient
612 goods or professional services that are inappropriate or of
613 inferior quality as determined by competent peer judgment; each
614 instance of knowingly submitting a materially false or erroneous
615 Medicaid provider enrollment application, request for prior
616 authorization for Medicaid services, drug exception request, or
617 cost report; each instance of inappropriate prescribing of drugs
618 for a Medicaid recipient as determined by competent peer
619 judgment; and each false or erroneous Medicaid claim leading to
620 an overpayment to a provider is considered, for the purposes of
621 this section, to be a separate violation.
622 (d) Immediate suspension, if the agency has received
623 information of patient abuse or neglect or of any act prohibited
624 by s. 409.920. Upon suspension, the agency must issue an
625 immediate final order under s. 120.569(2)(n).
626 (e) A fine, not to exceed $10,000, for a violation of
627 paragraph (15)(i).
628 (f) Imposition of liens against provider assets, including,
629 but not limited to, financial assets and real property, not to
630 exceed the amount of fines or recoveries sought, upon entry of
631 an order determining that such moneys are due or recoverable.
632 (g) Prepayment reviews of claims for a specified period of
633 time.
634 (h) Comprehensive followup reviews of providers every 6
635 months to ensure that they are billing Medicaid correctly.
636 (i) Corrective-action plans that would remain in effect for
637 providers for up to 3 years and that are would be monitored by
638 the agency every 6 months while in effect.
639 (j) Other remedies as permitted by law to effect the
640 recovery of a fine or overpayment.
641
642 If a provider voluntarily relinquishes its Medicaid provider
643 number or an associated license, or allows the associated
644 licensure to expire after receiving written notice that the
645 agency is conducting, or has conducted, an audit, survey,
646 inspection, or investigation and that a sanction of suspension
647 or termination will or would be imposed for noncompliance
648 discovered as a result of the audit, survey, inspection, or
649 investigation, the agency shall impose the sanction of
650 termination for cause against the provider. The agency’s
651 termination for cause action is subject to challenge under
652 chapter 120. The Secretary of Health Care Administration may
653 make a determination that imposition of a sanction or
654 disincentive is not in the best interest of the Medicaid
655 program, in which case a sanction or disincentive may shall not
656 be imposed.
657 (21) When making a determination that an overpayment has
658 occurred, the agency shall prepare and issue an audit report to
659 the provider showing the calculation of overpayments. The
660 agency’s determination must be based solely upon information
661 available to it before issuance of the audit report and, in the
662 case of documentation obtained to substantiate claims for
663 Medicaid reimbursement, based solely upon contemporaneous
664 records. The agency may consider addenda or modifications to a
665 note which were made contemporaneously with the patient care
666 episode if the addenda or modification is germane to the note.
667 (22) The audit report, supported by agency work papers,
668 showing an overpayment to a provider constitutes evidence of the
669 overpayment. A provider may not present or elicit testimony,
670 either on direct examination or cross-examination in any court
671 or administrative proceeding, regarding the purchase or
672 acquisition by any means of drugs, goods, or supplies; sales or
673 divestment by any means of drugs, goods, or supplies; or
674 inventory of drugs, goods, or supplies, unless such acquisition,
675 sales, divestment, or inventory is documented by written
676 invoices, written inventory records, or other competent written
677 documentary evidence maintained in the normal course of the
678 provider’s business. A provider may not present records to
679 contest an overpayment or sanction unless such records are
680 contemporaneous and, if requested during the audit process, were
681 furnished to the agency or its agent upon request. This
682 limitation does not apply to Medicaid cost report audits and
683 does not preclude consideration by the agency of addenda or
684 modifications to a note if the addenda or modification is made
685 before the notification of the audit and is germane to a note
686 that was made contemporaneously with a patient care episode.
687 Notwithstanding the applicable rules of discovery, all
688 documentation to that will be offered as evidence at an
689 administrative hearing on a Medicaid overpayment or an
690 administrative sanction must be exchanged by all parties at
691 least 14 days before the administrative hearing or must be
692 excluded from consideration.
693 (25)(a) The agency shall withhold Medicaid payments, in
694 whole or in part, to a provider upon receipt of reliable
695 evidence that the circumstances giving rise to the need for a
696 withholding of payments involve fraud, willful
697 misrepresentation, or abuse under the Medicaid program, or a
698 crime committed while rendering goods or services to Medicaid
699 recipients. If it is determined that fraud, willful
700 misrepresentation, abuse, or a crime did not occur, the payments
701 withheld must be paid to the provider within 14 days after such
702 determination with interest at the rate of 10 percent a year.
703 Amounts not paid within 14 days accrue interest at the rate of
704 10 percent a year, beginning after the 14th day Any money
705 withheld in accordance with this paragraph shall be placed in a
706 suspended account, readily accessible to the agency, so that any
707 payment ultimately due the provider shall be made within 14
708 days.
709 (b) The agency shall deny payment, or require repayment, if
710 the goods or services were furnished, supervised, or caused to
711 be furnished by a person who has been suspended or terminated
712 from the Medicaid program or Medicare program by the Federal
713 Government or any state.
714 (c) Overpayments owed to the agency bear interest at the
715 rate of 10 percent per year from the date of final determination
716 of the overpayment by the agency, and payment arrangements must
717 be made within 30 days after the date of the final order, which
718 is not subject to further appeal at the conclusion of legal
719 proceedings. A provider who does not enter into or adhere to an
720 agreed-upon repayment schedule may be terminated by the agency
721 for nonpayment or partial payment.
722 (d) The agency, upon entry of a final agency order, a
723 judgment or order of a court of competent jurisdiction, or a
724 stipulation or settlement, may collect the moneys owed by all
725 means allowable by law, including, but not limited to, notifying
726 any fiscal intermediary of Medicare benefits that the state has
727 a superior right of payment. Upon receipt of such written
728 notification, the Medicare fiscal intermediary shall remit to
729 the state the sum claimed.
730 (e) The agency may institute amnesty programs to allow
731 Medicaid providers the opportunity to voluntarily repay
732 overpayments. The agency may adopt rules to administer such
733 programs.
734 (28) Venue for all Medicaid program integrity overpayment
735 cases lies shall lie in Leon County, at the discretion of the
736 agency.
737 (30) The agency shall terminate a provider’s participation
738 in the Medicaid program if the provider fails to reimburse an
739 overpayment or pay an agency-imposed fine that has been
740 determined by final order, not subject to further appeal, within
741 30 35 days after the date of the final order, unless the
742 provider and the agency have entered into a repayment agreement.
743 (31) If a provider requests an administrative hearing
744 pursuant to chapter 120, such hearing must be conducted within
745 90 days following assignment of an administrative law judge,
746 absent exceptionally good cause shown as determined by the
747 administrative law judge or hearing officer. Upon issuance of a
748 final order, the outstanding balance of the amount determined to
749 constitute the overpayment and fines is shall become due. If a
750 provider fails to make payments in full, fails to enter into a
751 satisfactory repayment plan, or fails to comply with the terms
752 of a repayment plan or settlement agreement, the agency shall
753 withhold medical assistance reimbursement payments for Medicaid
754 services until the amount due is paid in full.
755 Section 4. Subsection (8) of section 409.920, Florida
756 Statutes, is amended to read:
757 409.920 Medicaid provider fraud.—
758 (8) A person who provides the state, any state agency, any
759 of the state’s political subdivisions, or any agency of the
760 state’s political subdivisions with information about fraud or
761 suspected fraudulent acts fraud by a Medicaid provider,
762 including a managed care organization, is immune from civil
763 liability for libel, slander, or any other relevant tort for
764 providing the information about fraud or suspected fraudulent
765 acts unless the person acted with knowledge that the information
766 was false or with reckless disregard for the truth or falsity of
767 the information. Such immunity extends to reports of fraudulent
768 acts or suspected fraudulent acts conveyed to or from the agency
769 in any manner, including any forum and with any audience as
770 directed by the agency, and includes all discussions subsequent
771 to the report and subsequent inquiries from the agency, unless
772 the person acted with knowledge that the information was false
773 or with reckless disregard for the truth or falsity of the
774 information. As used in this subsection, the term “fraudulent
775 acts” includes actual or suspected fraud and abuse, insurance
776 fraud, licensure fraud, or public assistance fraud, including
777 any fraud-related matters that a provider or health plan is
778 required to report to the agency or a law enforcement agency.
779 Section 5. Subsection (3) of section 624.351, Florida
780 Statutes, is amended, and subsection (8) is added to that
781 section, to read:
782 624.351 Medicaid and Public Assistance Fraud Strike Force.—
783 (3) MEMBERSHIP.—The strike force shall consist of the
784 following 11 members or their designees. A designee shall serve
785 in the same capacity as the designating member who may not
786 designate anyone to serve in their place:
787 (a) The Chief Financial Officer, who shall serve as chair.
788 (b) The Attorney General, who shall serve as vice chair.
789 (c) The executive director of the Department of Law
790 Enforcement.
791 (d) The Secretary of Health Care Administration.
792 (e) The Secretary of Children and Family Services.
793 (f) The State Surgeon General.
794 (g) Five members appointed by the Chief Financial Officer,
795 consisting of two sheriffs, two chiefs of police, and one state
796 attorney. When making these appointments, the Chief Financial
797 Officer shall consider representation by geography, population,
798 ethnicity, and other relevant factors in order to ensure that
799 the membership of the strike force is representative of the
800 state as a whole.
801 (8) EXPIRATION.—This section is repealed June 30, 2014.
802 Section 6. Subsection (3) is added to section 624.352,
803 Florida Statutes, to read:
804 624.352 Interagency agreements to detect and deter Medicaid
805 and public assistance fraud.—
806 (3) This section is repealed June 30, 2014.
807 Section 7. This act shall take effect July 1, 2013.
