Florida Senate - 2009                                    SB 1986
       
       
       
       By Senator Gaetz
       
       
       
       
       4-00827-09                                            20091986__
    1                        A bill to be entitled                      
    2         An act relating to Medicaid; amending s. 409.913,
    3         F.S.; authorizing the Agency for Health Care
    4         Administration to immediately terminate participation
    5         of a corporate Medicaid provider for actions or
    6         inactions of an officer, director, affiliated person,
    7         or other person having an ownership interest;
    8         requiring the agency to issue a final order under ch.
    9         120, F.S., in order to terminate a provider's
   10         participation in the Medicaid program; authorizing the
   11         agency to terminate or suspend a corporate Medicaid
   12         provider's participation in this state's Medicaid
   13         program if its participation has been terminated or
   14         suspended in another state or by the Federal
   15         Government; authorizing the agency to sanction a
   16         corporate Medicaid provider for specified violations;
   17         clarifying that the agency's calculation of
   18         overpayment in its audit report is based on
   19         documentation created contemporaneously with the goods
   20         or services rendered and made available to the agency
   21         before the issuance of the audit report; prohibiting a
   22         Medicaid provider from relying upon or presenting
   23         evidence of documentation or data that was not created
   24         contemporaneously with the goods or services rendered
   25         and made available to the agency before the issuance
   26         of its audit report; providing an effective date.
   27         
   28  Be It Enacted by the Legislature of the State of Florida:
   29         
   30         Section 1. Subsections (13), (14), (15), (21), and (22) of
   31  section 409.913, Florida Statutes, are amended to read:
   32         409.913 Oversight of the integrity of the Medicaid
   33  program.—The agency shall operate a program to oversee the
   34  activities of Florida Medicaid recipients, and providers and
   35  their representatives, to ensure that fraudulent and abusive
   36  behavior and neglect of recipients occur to the minimum extent
   37  possible, and to recover overpayments and impose sanctions as
   38  appropriate. Beginning January 1, 2003, and each year
   39  thereafter, the agency and the Medicaid Fraud Control Unit of
   40  the Department of Legal Affairs shall submit a joint report to
   41  the Legislature documenting the effectiveness of the state's
   42  efforts to control Medicaid fraud and abuse and to recover
   43  Medicaid overpayments during the previous fiscal year. The
   44  report must describe the number of cases opened and investigated
   45  each year; the sources of the cases opened; the disposition of
   46  the cases closed each year; the amount of overpayments alleged
   47  in preliminary and final audit letters; the number and amount of
   48  fines or penalties imposed; any reductions in overpayment
   49  amounts negotiated in settlement agreements or by other means;
   50  the amount of final agency determinations of overpayments; the
   51  amount deducted from federal claiming as a result of
   52  overpayments; the amount of overpayments recovered each year;
   53  the amount of cost of investigation recovered each year; the
   54  average length of time to collect from the time the case was
   55  opened until the overpayment is paid in full; the amount
   56  determined as uncollectible and the portion of the uncollectible
   57  amount subsequently reclaimed from the Federal Government; the
   58  number of providers, by type, that are terminated from
   59  participation in the Medicaid program as a result of fraud and
   60  abuse; and all costs associated with discovering and prosecuting
   61  cases of Medicaid overpayments and making recoveries in such
   62  cases. The report must also document actions taken to prevent
   63  overpayments and the number of providers prevented from
   64  enrolling in or reenrolling in the Medicaid program as a result
   65  of documented Medicaid fraud and abuse and must recommend
   66  changes necessary to prevent or recover overpayments.
   67         (13) The agency may immediately terminate participation of
   68  a Medicaid provider in the Medicaid program and may seek civil
   69  remedies or impose other administrative sanctions against a
   70  Medicaid provider, if the provider, or if the provider is not a
   71  natural person, any principal, officer, director, agent,
   72  managing employee, affiliated person, or any partner or
   73  shareholder having an ownership interest in the provider equal
   74  to 5 percent or greater, has been:
   75         (a) Convicted of a criminal offense related to the delivery
   76  of any health care goods or services, including the performance
   77  of management or administrative functions relating to the
   78  delivery of health care goods or services;
   79         (b) Convicted of a criminal offense under federal law or
   80  the law of any state relating to the practice of the provider's
   81  profession; or
   82         (c) Found by a court of competent jurisdiction to have
   83  neglected or physically abused a patient in connection with the
   84  delivery of health care goods or services.
   85  If the agency effects a termination under this subsection as an
   86  immediate termination, the agency shall issue an immediate final
   87  order under s. 120.569(2).
   88         (14) If the provider, or if the provider is not a natural
   89  person, any principal, officer, director, agent, managing
   90  employee, affiliated person, or any partner or shareholder
   91  having an ownership interest in the provider equal to 5 percent
   92  or greater, has been suspended or terminated from participation
   93  in the Medicaid program or the Medicare program by the Federal
   94  Government or any state, the agency must immediately suspend or
   95  terminate, as appropriate, the provider's participation in this
   96  state's the Florida Medicaid program for a period no less than
   97  that imposed by the Federal Government or any other state, and
   98  may not enroll such provider in this state's the Florida
   99  Medicaid program while such foreign suspension or termination
  100  remains in effect. This sanction is in addition to all other
  101  remedies provided by law.
  102         (15) The agency may seek any remedy provided by law,
  103  including, but not limited to, the remedies provided in
  104  subsections (13) and (16) and s. 812.035, if:
  105         (a) The provider's license has not been renewed, or has
  106  been revoked, suspended, or terminated, for cause, by the
  107  licensing agency of any state;
  108         (b) The provider has failed to make available or has
  109  refused access to Medicaid-related records to an auditor,
  110  investigator, or other authorized employee or agent of the
  111  agency, the Attorney General, a state attorney, or the Federal
  112  Government;
  113         (c) The provider has not furnished or has failed to make
  114  available such Medicaid-related records as the agency has found
  115  necessary to determine whether Medicaid payments are or were due
  116  and the amounts thereof;
  117         (d) The provider has failed to maintain medical records
  118  made at the time of service, or prior to service if prior
  119  authorization is required, demonstrating the necessity and
  120  appropriateness of the goods or services rendered;
  121         (e) The provider is not in compliance with provisions of
  122  Medicaid provider publications that have been adopted by
  123  reference as rules in the Florida Administrative Code; with
  124  provisions of state or federal laws, rules, or regulations; with
  125  provisions of the provider agreement between the agency and the
  126  provider; or with certifications found on claim forms or on
  127  transmittal forms for electronically submitted claims that are
  128  submitted by the provider or authorized representative, as such
  129  provisions apply to the Medicaid program;
  130         (f) The provider or person who ordered or prescribed the
  131  care, services, or supplies has furnished, or ordered the
  132  furnishing of, goods or services to a recipient which are
  133  inappropriate, unnecessary, excessive, or harmful to the
  134  recipient or are of inferior quality;
  135         (g) The provider has demonstrated a pattern of failure to
  136  provide goods or services that are medically necessary;
  137         (h) The provider or an authorized representative of the
  138  provider, or a person who ordered or prescribed the goods or
  139  services, has submitted or caused to be submitted false or a
  140  pattern of erroneous Medicaid claims;
  141         (i) The provider or an authorized representative of the
  142  provider, or a person who has ordered or prescribed the goods or
  143  services, has submitted or caused to be submitted a Medicaid
  144  provider enrollment application, a request for prior
  145  authorization for Medicaid services, a drug exception request,
  146  or a Medicaid cost report that contains materially false or
  147  incorrect information;
  148         (j) The provider or an authorized representative of the
  149  provider has collected from or billed a recipient or a
  150  recipient's responsible party improperly for amounts that should
  151  not have been so collected or billed by reason of the provider's
  152  billing the Medicaid program for the same service;
  153         (k) The provider or an authorized representative of the
  154  provider has included in a cost report costs that are not
  155  allowable under a Florida Title XIX reimbursement plan, after
  156  the provider or authorized representative had been advised in an
  157  audit exit conference or audit report that the costs were not
  158  allowable;
  159         (l) The provider is charged by information or indictment
  160  with fraudulent billing practices. The sanction applied for this
  161  reason is limited to suspension of the provider's participation
  162  in the Medicaid program for the duration of the indictment
  163  unless the provider is found guilty pursuant to the information
  164  or indictment;
  165         (m) The provider or a person who has ordered, or prescribed
  166  the goods or services is found liable for negligent practice
  167  resulting in death or injury to the provider's patient;
  168         (n) The provider fails to demonstrate that it had available
  169  during a specific audit or review period sufficient quantities
  170  of goods, or sufficient time in the case of services, to support
  171  the provider's billings to the Medicaid program;
  172         (o) The provider has failed to comply with the notice and
  173  reporting requirements of s. 409.907;
  174         (p) The agency has received reliable information of patient
  175  abuse or neglect or of any act prohibited by s. 409.920; or
  176         (q) The provider has failed to comply with an agreed-upon
  177  repayment schedule.
  178  If the violation involves any action or inaction by a provider,
  179  or if the provider is not a natural person, by any principal,
  180  officer, director, agent, managing employee, affiliated person,
  181  or any partner or shareholder having an ownership interest equal
  182  to 5 percent or greater in the provider, such action or inaction
  183  constitutes a violation of this subsection and the provider may
  184  be sanctioned.
  185         (21) When making a determination that an overpayment has
  186  occurred, the agency shall prepare and issue an audit report to
  187  the provider showing the calculation of overpayments. If the
  188  agency’s determination that an overpayment has occurred is based
  189  upon a review of the provider’s records, the calculation of
  190  overpayment shall be based upon documentation created
  191  contemporaneously with the goods or services rendered and made
  192  available to the agency before the issuance of the audit report.
  193         (22) The audit report, supported by agency work papers,
  194  showing an overpayment to a provider constitutes evidence of the
  195  overpayment. A provider may not present or elicit testimony,
  196  either on direct examination or cross-examination in any court
  197  or administrative proceeding, regarding the purchase or
  198  acquisition by any means of drugs, goods, or supplies; sales or
  199  divestment by any means of drugs, goods, or supplies; or
  200  inventory of drugs, goods, or supplies, unless such acquisition,
  201  sales, divestment, or inventory is documented by written
  202  invoices, written inventory records, or other competent written
  203  documentary evidence maintained in the normal course of the
  204  provider's business. Notwithstanding the applicable rules of
  205  discovery, all documentation that will be offered as evidence at
  206  an administrative hearing on a Medicaid overpayment must be
  207  exchanged by all parties at least 14 days before the
  208  administrative hearing or must be excluded from consideration. A
  209  provider may not rely upon or present evidence of documentation
  210  or data that was not created contemporaneously with the goods or
  211  services rendered and made available to the agency before
  212  issuance of the audit report.
  213         Section 2. This act shall take effect July 1, 2009.