Florida Senate - 2012 COMMITTEE AMENDMENT
Bill No. SB 1316
Barcode 815246
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/09/2012 .
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The Committee on Health Regulation (Gaetz) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Subsection (1) of section 395.002, Florida
6 Statutes, is amended to read:
7 395.002 Definitions.—As used in this chapter:
8 (1) “Accrediting organizations” means national
9 accreditation organizations that are approved by the Centers for
10 Medicare and Medicaid Services and whose standards incorporate
11 comparable licensure regulations required by the state the Joint
12 Commission on Accreditation of Healthcare Organizations, the
13 American Osteopathic Association, the Commission on
14 Accreditation of Rehabilitation Facilities, and the
15 Accreditation Association for Ambulatory Health Care, Inc.
16 Section 2. Subsection (6) of section 400.474, Florida
17 Statutes, is amended, present subsection (7) of that section is
18 renumbered as subsection (8), and a new subsection (7) is added
19 to that section, to read:
20 400.474 Administrative penalties.—
21 (6) The agency may deny, revoke, or suspend the license of
22 a home health agency and shall impose a fine of $5,000 against a
23 home health agency that:
24 (a) Gives remuneration for staffing services to:
25 1. Another home health agency with which it has formal or
26 informal patient-referral transactions or arrangements; or
27 2. A health services pool with which it has formal or
28 informal patient-referral transactions or arrangements,
29
30 unless the home health agency has activated its comprehensive
31 emergency management plan in accordance with s. 400.492. This
32 paragraph does not apply to a Medicare-certified home health
33 agency that provides fair market value remuneration for staffing
34 services to a non-Medicare-certified home health agency that is
35 part of a continuing care facility licensed under chapter 651
36 for providing services to its own residents if each resident
37 receiving home health services pursuant to this arrangement
38 attests in writing that he or she made a decision without
39 influence from staff of the facility to select, from a list of
40 Medicare-certified home health agencies provided by the
41 facility, that Medicare-certified home health agency to provide
42 the services.
43 (b) Provides services to residents in an assisted living
44 facility for which the home health agency does not receive fair
45 market value remuneration.
46 (c) Provides staffing to an assisted living facility for
47 which the home health agency does not receive fair market value
48 remuneration.
49 (d) Fails to provide the agency, upon request, with copies
50 of all contracts with assisted living facilities which were
51 executed within 5 years before the request.
52 (e) Gives remuneration to a case manager, discharge
53 planner, facility-based staff member, or third-party vendor who
54 is involved in the discharge planning process of a facility
55 licensed under chapter 395, chapter 429, or this chapter from
56 whom the home health agency receives referrals.
57 (f) Fails to submit to the agency, within 15 days after the
58 end of each calendar quarter, a written report that includes the
59 following data based on data as it existed on the last day of
60 the quarter:
61 1. The number of insulin-dependent diabetic patients
62 receiving insulin-injection services from the home health
63 agency;
64 2. The number of patients receiving both home health
65 services from the home health agency and hospice services;
66 3. The number of patients receiving home health services
67 from that home health agency; and
68 4. The names and license numbers of nurses whose primary
69 job responsibility is to provide home health services to
70 patients and who received remuneration from the home health
71 agency in excess of $25,000 during the calendar quarter.
72 (f)(g) Gives cash, or its equivalent, to a Medicare or
73 Medicaid beneficiary.
74 (g)(h) Has more than one medical director contract in
75 effect at one time or more than one medical director contract
76 and one contract with a physician-specialist whose services are
77 mandated for the home health agency in order to qualify to
78 participate in a federal or state health care program at one
79 time.
80 (h)(i) Gives remuneration to a physician without a medical
81 director contract being in effect. The contract must:
82 1. Be in writing and signed by both parties;
83 2. Provide for remuneration that is at fair market value
84 for an hourly rate, which must be supported by invoices
85 submitted by the medical director describing the work performed,
86 the dates on which that work was performed, and the duration of
87 that work; and
88 3. Be for a term of at least 1 year.
89
90 The hourly rate specified in the contract may not be increased
91 during the term of the contract. The home health agency may not
92 execute a subsequent contract with that physician which has an
93 increased hourly rate and covers any portion of the term that
94 was in the original contract.
95 (i)(j) Gives remuneration to:
96 1. A physician, and the home health agency is in violation
97 of paragraph (g) (h) or paragraph (h) (i);
98 2. A member of the physician’s office staff; or
99 3. An immediate family member of the physician,
100
101 if the home health agency has received a patient referral in the
102 preceding 12 months from that physician or physician’s office
103 staff.
104 (j)(k) Fails to provide to the agency, upon request, copies
105 of all contracts with a medical director which were executed
106 within 5 years before the request.
107 (k)(l) Demonstrates a pattern of billing the Medicaid
108 program for services to Medicaid recipients which are medically
109 unnecessary as determined by a final order. A pattern may be
110 demonstrated by a showing of at least two such medically
111 unnecessary services within one Medicaid program integrity audit
112 period.
113
114 Paragraphs (e) and (i) do not apply to or preclude Nothing in
115 paragraph (e) or paragraph (j) shall be interpreted as applying
116 to or precluding any discount, compensation, waiver of payment,
117 or payment practice permitted by 42 U.S.C. s. 1320a-7(b) or
118 regulations adopted thereunder, including 42 C.F.R. s. 1001.952
119 or s. 1395nn or regulations adopted thereunder.
120 (7) The agency shall impose a fine of $50 per day against a
121 home health agency that fails to submit to the agency, within 15
122 days after the end of each calendar quarter, a written report
123 that includes the following data based on data as it existed on
124 the last day of the quarter:
125 (a) The number of patients receiving both home health
126 services from the home health agency and hospice services;
127 (b) The number of patients receiving home health services
128 from the home health agency;
129 (c) The number of insulin-dependent diabetic patients
130 receiving insulin-injection services from the home health
131 agency; and
132 (d) The names and license numbers of nurses whose primary
133 job responsibility is to provide home health services to
134 patients and who received remuneration from the home health
135 agency in excess of $25,000 during the calendar quarter.
136 Section 3. Paragraph (l) of subsection (4) of section
137 400.9905, Florida Statutes, is amended, and paragraph (m) is
138 added to that subsection, to read:
139 400.9905 Definitions.—
140 (4) “Clinic” means an entity at which health care services
141 are provided to individuals and which tenders charges for
142 reimbursement for such services, including a mobile clinic and a
143 portable equipment provider. For purposes of this part, the term
144 does not include and the licensure requirements of this part do
145 not apply to:
146 (l) Orthotic, or prosthetic, pediatric cardiology, or
147 perinatology clinical facilities or anesthesia clinical
148 facilities that are not otherwise exempt under paragraph (a) or
149 paragraph (k) and that are a publicly traded corporation or that
150 are wholly owned, directly or indirectly, by a publicly traded
151 corporation. As used in this paragraph, a publicly traded
152 corporation is a corporation that issues securities traded on an
153 exchange registered with the United States Securities and
154 Exchange Commission as a national securities exchange.
155 (m) Entities that are owned or controlled, directly or
156 indirectly, by a publicly traded entity that has $100 million or
157 more, in the aggregate, in total annual revenues derived from
158 providing health care services by licensed health care
159 practitioners who are employed or contracted by an entity
160 described in this paragraph.
161 Section 4. Paragraph (i) of subsection (4) of section
162 409.221, Florida Statutes, is amended to read:
163 409.221 Consumer-directed care program.—
164 (4) CONSUMER-DIRECTED CARE.—
165 (i) Background screening requirements.—All persons who
166 render care under this section must undergo level 2 background
167 screening pursuant to chapter 435 and s. 408.809. The agency
168 shall, as allowable, reimburse consumer-employed caregivers for
169 the cost of conducting such background screening as required by
170 this section. For purposes of this section, a person who has
171 undergone screening, who is qualified for employment under this
172 section and applicable rule, and who has not been unemployed for
173 more than 90 days following such screening is not required to be
174 rescreened. Such person must attest under penalty of perjury to
175 not having been convicted of a disqualifying offense since
176 completing such screening.
177 Section 5. Paragraph (c) of subsection (3) of section
178 409.907, Florida Statutes, is amended, paragraph (k) is added to
179 that subsection, and subsections (6), (7), and (8) of that
180 section are amended, to read:
181 409.907 Medicaid provider agreements.—The agency may make
182 payments for medical assistance and related services rendered to
183 Medicaid recipients only to an individual or entity who has a
184 provider agreement in effect with the agency, who is performing
185 services or supplying goods in accordance with federal, state,
186 and local law, and who agrees that no person shall, on the
187 grounds of handicap, race, color, or national origin, or for any
188 other reason, be subjected to discrimination under any program
189 or activity for which the provider receives payment from the
190 agency.
191 (3) The provider agreement developed by the agency, in
192 addition to the requirements specified in subsections (1) and
193 (2), shall require the provider to:
194 (c) Retain all medical and Medicaid-related records for 6 a
195 period of 5 years to satisfy all necessary inquiries by the
196 agency.
197 (k) Report a change in any principal of the provider,
198 including any officer, director, agent, managing employee, or
199 affiliated person, or any partner or shareholder who has an
200 ownership interest equal to 5 percent or more in the provider,
201 to the agency in writing no later than 30 days after the change
202 occurs.
203 (6) A Medicaid provider agreement may be revoked, at the
204 option of the agency, due to as the result of a change of
205 ownership of any facility, association, partnership, or other
206 entity named as the provider in the provider agreement.
207 (a) In the event of a change of ownership, the transferor
208 remains liable for all outstanding overpayments, administrative
209 fines, and any other moneys owed to the agency before the
210 effective date of the change of ownership. In addition to the
211 continuing liability of the transferor, The transferee is also
212 liable to the agency for all outstanding overpayments identified
213 by the agency on or before the effective date of the change of
214 ownership. For purposes of this subsection, the term
215 “outstanding overpayment” includes any amount identified in a
216 preliminary audit report issued to the transferor by the agency
217 on or before the effective date of the change of ownership. In
218 the event of a change of ownership for a skilled nursing
219 facility or intermediate care facility, the Medicaid provider
220 agreement shall be assigned to the transferee if the transferee
221 meets all other Medicaid provider qualifications. In the event
222 of a change of ownership involving a skilled nursing facility
223 licensed under part II of chapter 400, liability for all
224 outstanding overpayments, administrative fines, and any moneys
225 owed to the agency before the effective date of the change of
226 ownership shall be determined in accordance with s. 400.179.
227 (b) At least 60 days before the anticipated date of the
228 change of ownership, the transferor must shall notify the agency
229 of the intended change of ownership and the transferee must
230 shall submit to the agency a Medicaid provider enrollment
231 application. If a change of ownership occurs without compliance
232 with the notice requirements of this subsection, the transferor
233 and transferee are shall be jointly and severally liable for all
234 overpayments, administrative fines, and other moneys due to the
235 agency, regardless of whether the agency identified the
236 overpayments, administrative fines, or other moneys before or
237 after the effective date of the change of ownership. The agency
238 may not approve a transferee’s Medicaid provider enrollment
239 application if the transferee or transferor has not paid or
240 agreed in writing to a payment plan for all outstanding
241 overpayments, administrative fines, and other moneys due to the
242 agency. This subsection does not preclude the agency from
243 seeking any other legal or equitable remedies available to the
244 agency for the recovery of moneys owed to the Medicaid program.
245 In the event of a change of ownership involving a skilled
246 nursing facility licensed under part II of chapter 400,
247 liability for all outstanding overpayments, administrative
248 fines, and any moneys owed to the agency before the effective
249 date of the change of ownership shall be determined in
250 accordance with s. 400.179 if the Medicaid provider enrollment
251 application for change of ownership is submitted before the
252 change of ownership.
253 (c) As used in this subsection, the term:
254 1. “Administrative fines” includes any amount identified in
255 a notice of a monetary penalty or fine which has been issued by
256 the agency or other regulatory or licensing agency that governs
257 the provider.
258 2. “Outstanding overpayment” includes any amount identified
259 in a preliminary audit report issued to the transferor by the
260 agency on or before the effective date of a change of ownership.
261 (7) The agency may require, As a condition of participating
262 in the Medicaid program and before entering into the provider
263 agreement, the agency may require that the provider to submit
264 information, in an initial and any required renewal
265 applications, concerning the professional, business, and
266 personal background of the provider and permit an onsite
267 inspection of the provider’s service location by agency staff or
268 other personnel designated by the agency to perform this
269 function. Before entering into a provider agreement, the agency
270 may shall perform an a random onsite inspection, within 60 days
271 after receipt of a fully complete new provider’s application, of
272 the provider’s service location prior to making its first
273 payment to the provider for Medicaid services to determine the
274 applicant’s ability to provide the services in compliance with
275 the Medicaid program and professional regulations that the
276 applicant is proposing to provide for Medicaid reimbursement.
277 The agency is not required to perform an onsite inspection of a
278 provider or program that is licensed by the agency, that
279 provides services under waiver programs for home and community
280 based services, or that is licensed as a medical foster home by
281 the Department of Children and Family Services. As a continuing
282 condition of participation in the Medicaid program, a provider
283 must shall immediately notify the agency of any current or
284 pending bankruptcy filing. Before entering into the provider
285 agreement, or as a condition of continuing participation in the
286 Medicaid program, the agency may also require that Medicaid
287 providers reimbursed on a fee-for-services basis or fee schedule
288 basis that which is not cost-based, post a surety bond not to
289 exceed $50,000 or the total amount billed by the provider to the
290 program during the current or most recent calendar year,
291 whichever is greater. For new providers, the amount of the
292 surety bond shall be determined by the agency based on the
293 provider’s estimate of its first year’s billing. If the
294 provider’s billing during the first year exceeds the bond
295 amount, the agency may require the provider to acquire an
296 additional bond equal to the actual billing level of the
297 provider. A provider’s bond need shall not exceed $50,000 if a
298 physician or group of physicians licensed under chapter 458,
299 chapter 459, or chapter 460 has a 50 percent or greater
300 ownership interest in the provider or if the provider is an
301 assisted living facility licensed under chapter 429. The bonds
302 permitted by this section are in addition to the bonds
303 referenced in s. 400.179(2)(d). If the provider is a
304 corporation, partnership, association, or other entity, the
305 agency may require the provider to submit information concerning
306 the background of that entity and of any principal of the
307 entity, including any partner or shareholder having an ownership
308 interest in the entity equal to 5 percent or greater, and any
309 treating provider who participates in or intends to participate
310 in Medicaid through the entity. The information must include:
311 (a) Proof of holding a valid license or operating
312 certificate, as applicable, if required by the state or local
313 jurisdiction in which the provider is located or if required by
314 the Federal Government.
315 (b) Information concerning any prior violation, fine,
316 suspension, termination, or other administrative action taken
317 under the Medicaid laws, rules, or regulations of this state or
318 of any other state or the Federal Government; any prior
319 violation of the laws, rules, or regulations relating to the
320 Medicare program; any prior violation of the rules or
321 regulations of any other public or private insurer; and any
322 prior violation of the laws, rules, or regulations of any
323 regulatory body of this or any other state.
324 (c) Full and accurate disclosure of any financial or
325 ownership interest that the provider, or any principal, partner,
326 or major shareholder thereof, may hold in any other Medicaid
327 provider or health care related entity or any other entity that
328 is licensed by the state to provide health or residential care
329 and treatment to persons.
330 (d) If a group provider, identification of all members of
331 the group and attestation that all members of the group are
332 enrolled in or have applied to enroll in the Medicaid program.
333 (8)(a) Each provider, or each principal of the provider if
334 the provider is a corporation, partnership, association, or
335 other entity, seeking to participate in the Medicaid program
336 must submit a complete set of his or her fingerprints to the
337 agency for the purpose of conducting a criminal history record
338 check. Principals of the provider include any officer, director,
339 billing agent, managing employee, or affiliated person, or any
340 partner or shareholder who has an ownership interest equal to 5
341 percent or more in the provider. However, for a hospital
342 licensed under chapter 395 or a nursing home licensed under
343 chapter 400, principals of the provider are those who meet the
344 definition of a controlling interest under s. 408.803. A
345 director of a not-for-profit corporation or organization is not
346 a principal for purposes of a background investigation as
347 required by this section if the director: serves solely in a
348 voluntary capacity for the corporation or organization, does not
349 regularly take part in the day-to-day operational decisions of
350 the corporation or organization, receives no remuneration from
351 the not-for-profit corporation or organization for his or her
352 service on the board of directors, has no financial interest in
353 the not-for-profit corporation or organization, and has no
354 family members with a financial interest in the not-for-profit
355 corporation or organization; and if the director submits an
356 affidavit, under penalty of perjury, to this effect to the
357 agency and the not-for-profit corporation or organization
358 submits an affidavit, under penalty of perjury, to this effect
359 to the agency as part of the corporation’s or organization’s
360 Medicaid provider agreement application.
361 (a) Notwithstanding the above, the agency may require a
362 background check for any person reasonably suspected by the
363 agency to have been convicted of a crime. This subsection does
364 not apply to:
365 1. A hospital licensed under chapter 395;
366 2. A nursing home licensed under chapter 400;
367 3. A hospice licensed under chapter 400;
368 4. An assisted living facility licensed under chapter 429;
369 1.5. A unit of local government, except that requirements
370 of this subsection apply to nongovernmental providers and
371 entities contracting with the local government to provide
372 Medicaid services. The actual cost of the state and national
373 criminal history record checks must be borne by the
374 nongovernmental provider or entity; or
375 2.6. Any business that derives more than 50 percent of its
376 revenue from the sale of goods to the final consumer, and the
377 business or its controlling parent is required to file a form
378 10-K or other similar statement with the Securities and Exchange
379 Commission or has a net worth of $50 million or more.
380 (b) Background screening shall be conducted in accordance
381 with chapter 435 and s. 408.809. The cost of the state and
382 national criminal record check shall be borne by the provider.
383 (c) Proof of compliance with the requirements of level 2
384 screening under chapter 435 conducted within 12 months before
385 the date the Medicaid provider application is submitted to the
386 agency fulfills the requirements of this subsection.
387 Section 6. Present paragraphs (e) and (f) of subsection (1)
388 of section 409.913, Florida Statutes, are redesignated as
389 paragraphs (f) and (g), respectively, a new paragraph (e) is
390 added to that subsection, and subsections (2), (9), (13), (15),
391 (16), (21), (22), (25), (28), (29), (30), and (31) of that
392 section are amended, to read:
393 409.913 Oversight of the integrity of the Medicaid
394 program.—The agency shall operate a program to oversee the
395 activities of Florida Medicaid recipients, and providers and
396 their representatives, to ensure that fraudulent and abusive
397 behavior and neglect of recipients occur to the minimum extent
398 possible, and to recover overpayments and impose sanctions as
399 appropriate. Beginning January 1, 2003, and each year
400 thereafter, the agency and the Medicaid Fraud Control Unit of
401 the Department of Legal Affairs shall submit a joint report to
402 the Legislature documenting the effectiveness of the state’s
403 efforts to control Medicaid fraud and abuse and to recover
404 Medicaid overpayments during the previous fiscal year. The
405 report must describe the number of cases opened and investigated
406 each year; the sources of the cases opened; the disposition of
407 the cases closed each year; the amount of overpayments alleged
408 in preliminary and final audit letters; the number and amount of
409 fines or penalties imposed; any reductions in overpayment
410 amounts negotiated in settlement agreements or by other means;
411 the amount of final agency determinations of overpayments; the
412 amount deducted from federal claiming as a result of
413 overpayments; the amount of overpayments recovered each year;
414 the amount of cost of investigation recovered each year; the
415 average length of time to collect from the time the case was
416 opened until the overpayment is paid in full; the amount
417 determined as uncollectible and the portion of the uncollectible
418 amount subsequently reclaimed from the Federal Government; the
419 number of providers, by type, that are terminated from
420 participation in the Medicaid program as a result of fraud and
421 abuse; and all costs associated with discovering and prosecuting
422 cases of Medicaid overpayments and making recoveries in such
423 cases. The report must also document actions taken to prevent
424 overpayments and the number of providers prevented from
425 enrolling in or reenrolling in the Medicaid program as a result
426 of documented Medicaid fraud and abuse and must include policy
427 recommendations necessary to prevent or recover overpayments and
428 changes necessary to prevent and detect Medicaid fraud. All
429 policy recommendations in the report must include a detailed
430 fiscal analysis, including, but not limited to, implementation
431 costs, estimated savings to the Medicaid program, and the return
432 on investment. The agency must submit the policy recommendations
433 and fiscal analyses in the report to the appropriate estimating
434 conference, pursuant to s. 216.137, by February 15 of each year.
435 The agency and the Medicaid Fraud Control Unit of the Department
436 of Legal Affairs each must include detailed unit-specific
437 performance standards, benchmarks, and metrics in the report,
438 including projected cost savings to the state Medicaid program
439 during the following fiscal year.
440 (1) For the purposes of this section, the term:
441 (e) “Medicaid provider” or “provider” has the same meaning
442 as provided in s. 409.901 and, for purposes of oversight of the
443 integrity of the Medicaid program, also includes a participant
444 in a Medicaid managed care provider network.
445 (2) The agency shall conduct, or cause to be conducted by
446 contract or otherwise, reviews, investigations, analyses,
447 audits, or any combination thereof, to determine possible fraud,
448 abuse, overpayment, or recipient neglect in the Medicaid program
449 and shall report the findings of any overpayments in audit
450 reports as appropriate. At least 5 percent of all audits must
451 shall be conducted on a random basis. As part of its ongoing
452 fraud detection activities, the agency shall identify and
453 monitor, by contract or otherwise, patterns of overutilization
454 of Medicaid services based on state averages. The agency shall
455 track Medicaid provider prescription and billing patterns and
456 evaluate them against Medicaid medical necessity criteria and
457 coverage and limitation guidelines adopted by rule. Medical
458 necessity determination requires that service be consistent with
459 symptoms or confirmed diagnosis of illness or injury under
460 treatment and not in excess of the patient’s needs. The agency
461 shall conduct reviews of provider exceptions to peer group norms
462 and shall, using statistical methodologies, provider profiling,
463 and analysis of billing patterns, detect and investigate
464 abnormal or unusual increases in billing or payment of claims
465 for Medicaid services and medically unnecessary provision of
466 services. The agency may review and analyze information from
467 sources other than enrolled Medicaid providers in conducting its
468 activities under this subsection.
469 (9) A Medicaid provider shall retain medical, professional,
470 financial, and business records pertaining to services and goods
471 furnished to a Medicaid recipient and billed to Medicaid for 6 a
472 period of 5 years after the date of furnishing such services or
473 goods. The agency may investigate, review, or analyze such
474 records, which must be made available during normal business
475 hours. However, 24-hour notice must be provided if patient
476 treatment would be disrupted. The provider is responsible for
477 furnishing to the agency, and keeping the agency informed of the
478 location of, the provider’s Medicaid-related records. The
479 authority of the agency to obtain Medicaid-related records from
480 a provider is neither curtailed nor limited during a period of
481 litigation between the agency and the provider.
482 (13) The agency shall immediately terminate participation
483 of a Medicaid provider in the Medicaid program and may seek
484 civil remedies or impose other administrative sanctions against
485 a Medicaid provider, if the provider or any principal, officer,
486 director, agent, managing employee, or affiliated person of the
487 provider, or any partner or shareholder having an ownership
488 interest in the provider equal to 5 percent or greater, has been
489 convicted of a criminal offense under federal law or the law of
490 any state relating to the practice of the provider’s profession,
491 or an offense listed under s. 409.907(10), s. 408.809(4), or s.
492 435.04(2) has been:
493 (a) Convicted of a criminal offense related to the delivery
494 of any health care goods or services, including the performance
495 of management or administrative functions relating to the
496 delivery of health care goods or services;
497 (b) Convicted of a criminal offense under federal law or
498 the law of any state relating to the practice of the provider’s
499 profession; or
500 (c) Found by a court of competent jurisdiction to have
501 neglected or physically abused a patient in connection with the
502 delivery of health care goods or services. If the agency
503 determines that the a provider did not participate or acquiesce
504 in the an offense specified in paragraph (a), paragraph (b), or
505 paragraph (c), termination will not be imposed. If the agency
506 effects a termination under this subsection, the agency shall
507 issue an immediate final order pursuant to s. 120.569(2)(n).
508 (15) The agency shall seek a remedy provided by law,
509 including, but not limited to, any remedy provided in
510 subsections (13) and (16) and s. 812.035, if:
511 (a) The provider’s license has not been renewed, or has
512 been revoked, suspended, or terminated, for cause, by the
513 licensing agency of any state;
514 (b) The provider has failed to make available or has
515 refused access to Medicaid-related records to an auditor,
516 investigator, or other authorized employee or agent of the
517 agency, the Attorney General, a state attorney, or the Federal
518 Government;
519 (c) The provider has not furnished or has failed to make
520 available such Medicaid-related records as the agency has found
521 necessary to determine whether Medicaid payments are or were due
522 and the amounts thereof;
523 (d) The provider has failed to maintain medical records
524 made at the time of service, or prior to service if prior
525 authorization is required, demonstrating the necessity and
526 appropriateness of the goods or services rendered;
527 (e) The provider is not in compliance with provisions of
528 Medicaid provider publications that have been adopted by
529 reference as rules in the Florida Administrative Code; with
530 provisions of state or federal laws, rules, or regulations; with
531 provisions of the provider agreement between the agency and the
532 provider; or with certifications found on claim forms or on
533 transmittal forms for electronically submitted claims that are
534 submitted by the provider or authorized representative, as such
535 provisions apply to the Medicaid program;
536 (f) The provider or person who ordered, authorized, or
537 prescribed the care, services, or supplies has furnished, or
538 ordered, or authorized the furnishing of, goods or services to a
539 recipient which are inappropriate, unnecessary, excessive, or
540 harmful to the recipient or are of inferior quality;
541 (g) The provider has demonstrated a pattern of failure to
542 provide goods or services that are medically necessary;
543 (h) The provider or an authorized representative of the
544 provider, or a person who ordered, authorized, or prescribed the
545 goods or services, has submitted or caused to be submitted false
546 or a pattern of erroneous Medicaid claims;
547 (i) The provider or an authorized representative of the
548 provider, or a person who has ordered, authorized, or prescribed
549 the goods or services, has submitted or caused to be submitted a
550 Medicaid provider enrollment application, a request for prior
551 authorization for Medicaid services, a drug exception request,
552 or a Medicaid cost report that contains materially false or
553 incorrect information;
554 (j) The provider or an authorized representative of the
555 provider has collected from or billed a recipient or a
556 recipient’s responsible party improperly for amounts that should
557 not have been so collected or billed by reason of the provider’s
558 billing the Medicaid program for the same service;
559 (k) The provider or an authorized representative of the
560 provider has included in a cost report costs that are not
561 allowable under a Florida Title XIX reimbursement plan, after
562 the provider or authorized representative had been advised in an
563 audit exit conference or audit report that the costs were not
564 allowable;
565 (l) The provider is charged by information or indictment
566 with fraudulent billing practices or any offense referenced in
567 subsection (13). The sanction applied for this reason is limited
568 to suspension of the provider’s participation in the Medicaid
569 program for the duration of the indictment unless the provider
570 is found guilty pursuant to the information or indictment;
571 (m) The provider or a person who has ordered, authorized,
572 or prescribed the goods or services is found liable for
573 negligent practice resulting in death or injury to the
574 provider’s patient;
575 (n) The provider fails to demonstrate that it had available
576 during a specific audit or review period sufficient quantities
577 of goods, or sufficient time in the case of services, to support
578 the provider’s billings to the Medicaid program;
579 (o) The provider has failed to comply with the notice and
580 reporting requirements of s. 409.907;
581 (p) The agency has received reliable information of patient
582 abuse or neglect or of any act prohibited by s. 409.920; or
583 (q) The provider has failed to comply with an agreed-upon
584 repayment schedule.
585
586 A provider is subject to sanctions for violations of this
587 subsection as the result of actions or inactions of the
588 provider, or actions or inactions of any principal, officer,
589 director, agent, managing employee, or affiliated person of the
590 provider, or any partner or shareholder having an ownership
591 interest in the provider equal to 5 percent or greater, in which
592 the provider participated or acquiesced.
593 (16) The agency shall impose any of the following sanctions
594 or disincentives on a provider or a person for any of the acts
595 described in subsection (15):
596 (a) Suspension for a specific period of time of not more
597 than 1 year. Suspension precludes shall preclude participation
598 in the Medicaid program, which includes any action that results
599 in a claim for payment to the Medicaid program as a result of
600 furnishing, supervising a person who is furnishing, or causing a
601 person to furnish goods or services.
602 (b) Termination for a specific period of time of from more
603 than 1 year to 20 years. Termination precludes shall preclude
604 participation in the Medicaid program, which includes any action
605 that results in a claim for payment to the Medicaid program as a
606 result of furnishing, supervising a person who is furnishing, or
607 causing a person to furnish goods or services.
608 (c) Imposition of a fine of up to $5,000 for each
609 violation. Each day that an ongoing violation continues, such as
610 refusing to furnish Medicaid-related records or refusing access
611 to records, is considered, for the purposes of this section, to
612 be a separate violation. Each instance of improper billing of a
613 Medicaid recipient; each instance of including an unallowable
614 cost on a hospital or nursing home Medicaid cost report after
615 the provider or authorized representative has been advised in an
616 audit exit conference or previous audit report of the cost
617 unallowability; each instance of furnishing a Medicaid recipient
618 goods or professional services that are inappropriate or of
619 inferior quality as determined by competent peer judgment; each
620 instance of knowingly submitting a materially false or erroneous
621 Medicaid provider enrollment application, request for prior
622 authorization for Medicaid services, drug exception request, or
623 cost report; each instance of inappropriate prescribing of drugs
624 for a Medicaid recipient as determined by competent peer
625 judgment; and each false or erroneous Medicaid claim leading to
626 an overpayment to a provider is considered, for the purposes of
627 this section, to be a separate violation.
628 (d) Immediate suspension, if the agency has received
629 information of patient abuse or neglect or of any act prohibited
630 by s. 409.920. Upon suspension, the agency must issue an
631 immediate final order under s. 120.569(2)(n).
632 (e) A fine, not to exceed $10,000, for a violation of
633 paragraph (15)(i).
634 (f) Imposition of liens against provider assets, including,
635 but not limited to, financial assets and real property, not to
636 exceed the amount of fines or recoveries sought, upon entry of
637 an order determining that such moneys are due or recoverable.
638 (g) Prepayment reviews of claims for a specified period of
639 time.
640 (h) Comprehensive followup reviews of providers every 6
641 months to ensure that they are billing Medicaid correctly.
642 (i) Corrective-action plans that would remain in effect for
643 providers for up to 3 years and that are would be monitored by
644 the agency every 6 months while in effect.
645 (j) Other remedies as permitted by law to effect the
646 recovery of a fine or overpayment.
647
648 If a provider voluntarily relinquishes its Medicaid provider
649 number after receiving written notice that the agency is
650 conducting, or has conducted, an audit or investigation and the
651 sanction of suspension or termination will be imposed for
652 noncompliance discovered as a result of the audit or
653 investigation, the agency shall impose the sanction of
654 termination for cause against the provider. The Secretary of
655 Health Care Administration may make a determination that
656 imposition of a sanction or disincentive is not in the best
657 interest of the Medicaid program, in which case a sanction or
658 disincentive may shall not be imposed.
659 (21) When making a determination that an overpayment has
660 occurred, the agency shall prepare and issue an audit report to
661 the provider showing the calculation of overpayments. The
662 agency’s determination shall be based solely upon information
663 available to it before issuance of the audit report and, in the
664 case of documentation obtained to substantiate claims for
665 Medicaid reimbursement, based solely upon contemporaneous
666 records.
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. Testimony or evidence that is not based
679 upon contemporaneous records or that was not furnished to the
680 agency within 21 days after the issuance of the audit report is
681 inadmissible in an administrative hearing on a Medicaid
682 overpayment or an administrative sanction. Notwithstanding the
683 applicable rules of discovery, all documentation to that will be
684 offered as evidence at an administrative hearing on a Medicaid
685 overpayment or an administrative sanction must be exchanged by
686 all parties at least 14 days before the administrative hearing
687 or must be excluded from consideration.
688 (25)(a) The agency shall withhold Medicaid payments, in
689 whole or in part, to a provider upon receipt of reliable
690 evidence that the circumstances giving rise to the need for a
691 withholding of payments involve fraud, willful
692 misrepresentation, or abuse under the Medicaid program, or a
693 crime committed while rendering goods or services to Medicaid
694 recipients. If it is determined that fraud, willful
695 misrepresentation, abuse, or a crime did not occur, the payments
696 withheld must be paid to the provider within 14 days after such
697 determination with interest at the rate of 10 percent a year.
698 Any money withheld in accordance with this paragraph shall be
699 placed in a suspended account, readily accessible to the agency,
700 so that any payment ultimately due the provider shall be made
701 within 14 days.
702 (b) The agency shall deny payment, or require repayment, if
703 the goods or services were furnished, supervised, or caused to
704 be furnished by a person who has been suspended or terminated
705 from the Medicaid program or Medicare program by the Federal
706 Government or any state.
707 (c) Overpayments owed to the agency bear interest at the
708 rate of 10 percent per year from the date of determination of
709 the overpayment by the agency, and payment arrangements
710 regarding overpayments and fines must be made within 30 days
711 after the date of the final order and are not subject to further
712 appeal at the conclusion of legal proceedings. A provider who
713 does not enter into or adhere to an agreed-upon repayment
714 schedule may be terminated by the agency for nonpayment or
715 partial payment.
716 (d) The agency, upon entry of a final agency order, a
717 judgment or order of a court of competent jurisdiction, or a
718 stipulation or settlement, may collect the moneys owed by all
719 means allowable by law, including, but not limited to, notifying
720 any fiscal intermediary of Medicare benefits that the state has
721 a superior right of payment. Upon receipt of such written
722 notification, the Medicare fiscal intermediary shall remit to
723 the state the sum claimed.
724 (e) The agency may institute amnesty programs to allow
725 Medicaid providers the opportunity to voluntarily repay
726 overpayments. The agency may adopt rules to administer such
727 programs.
728 (28) Venue for all Medicaid program integrity overpayment
729 cases lies shall lie in Leon County, at the discretion of the
730 agency.
731 (29) Notwithstanding other provisions of law, the agency
732 and the Medicaid Fraud Control Unit of the Department of Legal
733 Affairs may review a person’s or provider’s Medicaid-related and
734 non-Medicaid-related records in order to determine the total
735 output of a provider’s practice to reconcile quantities of goods
736 or services billed to Medicaid with quantities of goods or
737 services used in the provider’s total practice.
738 (30) The agency shall terminate a provider’s participation
739 in the Medicaid program if the provider fails to reimburse an
740 overpayment or pay a fine that has been determined by final
741 order, not subject to further appeal, within 30 35 days after
742 the date of the final order, unless the provider and the agency
743 have entered into a repayment agreement.
744 (31) If a provider requests an administrative hearing
745 pursuant to chapter 120, such hearing must be conducted within
746 90 days following assignment of an administrative law judge,
747 absent exceptionally good cause shown as determined by the
748 administrative law judge or hearing officer. Upon issuance of a
749 final order, the outstanding balance of the amount determined to
750 constitute the overpayment and fines is shall become due. If a
751 provider fails to make payments in full, fails to enter into a
752 satisfactory repayment plan, or fails to comply with the terms
753 of a repayment plan or settlement agreement, the agency shall
754 withhold medical assistance reimbursement payments for Medicaid
755 services until the amount due is paid in full.
756 Section 7. Subsection (8) of section 409.920, Florida
757 Statutes, is amended to read:
758 409.920 Medicaid provider fraud.—
759 (8) A person who provides the state, any state agency, any
760 of the state’s political subdivisions, or any agency of the
761 state’s political subdivisions with information about fraud or
762 suspected fraudulent acts fraud by a Medicaid provider,
763 including a managed care organization, is immune from civil
764 liability for libel, slander, or any other relevant tort for
765 providing any the information about fraud or suspected
766 fraudulent acts, unless the person acted with knowledge that the
767 information was false or with reckless disregard for the truth
768 or falsity of the information. For purposes of this subsection,
769 the term “fraudulent acts” includes actual or suspected fraud,
770 abuse, or overpayment, including any fraud-related matters that
771 a provider or health plan is required to report to the agency or
772 a law enforcement agency. The immunity from civil liability
773 extends to reports of fraudulent acts conveyed to the agency in
774 any manner, including any forum and with any audience as
775 directed by the agency, and includes all discussions subsequent
776 to the report and subsequent inquiries from the agency, unless
777 the person acted with knowledge that the information was false
778 or with reckless disregard for the truth or falsity of the
779 information.
780 Section 8. Paragraph (c) of subsection (2) of section
781 409.967, Florida Statutes, is amended to read:
782 409.967 Managed care plan accountability.—
783 (2) The agency shall establish such contract requirements
784 as are necessary for the operation of the statewide managed care
785 program. In addition to any other provisions the agency may deem
786 necessary, the contract must require:
787 (c) Access.—
788 1. Providers.—The agency shall establish specific standards
789 for the number, type, and regional distribution of providers in
790 managed care plan networks to ensure access to care for both
791 adults and children. Each plan must maintain a regionwide
792 network of providers in sufficient numbers to meet the access
793 standards for specific medical services for all recipients
794 enrolled in the plan. The exclusive use of mail-order pharmacies
795 is may not be sufficient to meet network access standards.
796 Consistent with the standards established by the agency,
797 provider networks may include providers located outside the
798 region. A plan may contract with a new hospital facility before
799 the date the hospital becomes operational if the hospital has
800 commenced construction, will be licensed and operational by
801 January 1, 2013, and a final order has issued in any civil or
802 administrative challenge. Each plan shall establish and maintain
803 an accurate and complete electronic database of contracted
804 providers, including information about licensure or
805 registration, locations and hours of operation, specialty
806 credentials and other certifications, specific performance
807 indicators, and such other information as the agency deems
808 necessary. The database must be available online to both the
809 agency and the public and have the capability to compare the
810 availability of providers to network adequacy standards and to
811 accept and display feedback from each provider’s patients. Each
812 plan shall submit quarterly reports to the agency identifying
813 the number of enrollees assigned to each primary care provider.
814 2. Prescribed drugs.—
815 a. If establishing a prescribed drug formulary or preferred
816 drug list, a managed care plan must:
817 (I) Provide a broad range of therapeutic options for the
818 treatment of disease states consistent with the general needs of
819 an outpatient population. Whenever feasible, the formulary or
820 preferred drug list should include at least two products in a
821 therapeutic class;
822 (II) Include coverage via prior authorization for each drug
823 newly approved by the federal Food and Drug Administration until
824 the plan’s Pharmaceutical and Therapeutics Committee reviews
825 such drug for inclusion on the formulary. The timing of the
826 formulary review must comply with s. 409.91195; and
827 (III) Provide a response within 24 hours after receipt of
828 all necessary information from the medical provider for a
829 request for prior authorization and provide a procedure for
830 escalating a delayed prior authorization request to the pharmacy
831 management team for resolution or to override other medical
832 management tools.
833 b. Each managed care plan shall must publish any prescribed
834 drug formulary or preferred drug list on the plan’s website in a
835 manner that is accessible to and searchable by enrollees and
836 providers. The plan must update the list within 24 hours after
837 making a change. Each plan must ensure that the prior
838 authorization process for prescribed drugs is readily accessible
839 to health care providers, including posting appropriate contact
840 information on its website and providing timely responses to
841 providers.
842 c. The managed care plan must continue to permit an
843 enrollee who was receiving a prescription drug that was on the
844 plan’s formulary and subsequently removed or changed to continue
845 to receive that drug if the provider submits a written request
846 that demonstrates that the drug is medically necessary, and the
847 enrollee meets clinical criteria to receive the drug.
848 d. A managed care plan that imposes a step-therapy or a
849 fail-first protocol must do so in accordance with the following:
850 (I) If prescribed drugs for the treatment of a medical
851 condition are restricted for use by the plan through a step
852 therapy or fail-first protocol, the plan must provide the
853 prescriber with access to a clear and convenient process to
854 expeditiously request a prior authorization that includes a
855 procedure for escalation to the pharmacy management team if not
856 resolved in a timely manner.
857 (II) Escalation to the pharmacy management team must be
858 expeditiously granted by the plan if the prescriber can submit
859 appropriate and complete medical documentation to the plan that
860 the preferred treatment required under the step-therapy or fail
861 first protocol:
862 (A) Has been ineffective in the treatment of the enrollee’s
863 disease or medical condition;
864 (B) Is reasonably expected to be ineffective based on the
865 known relevant physical or mental characteristics and medical
866 history of the enrollee and known characteristics of the drug
867 regimen; or
868 (C) Will cause or will likely cause an adverse reaction or
869 other physical harm to the enrollee.
870 (III) The pharmacy management team shall work directly with
871 the medical provider to bring the prior-authorization request to
872 a clinically appropriate, cost-effective, and timely resolution.
873 e. For enrollees Medicaid recipients diagnosed with
874 hemophilia who have been prescribed anti-hemophilic-factor
875 replacement products, the agency shall provide for those
876 products and hemophilia overlay services through the agency’s
877 hemophilia disease management program.
878 3. Prior authorization.—
879 a. Each managed care plan must ensure that the prior
880 authorization process for prescribed drugs is readily accessible
881 to health care providers, including posting appropriate contact
882 information on its website and providing timely responses to
883 providers.
884 b. If a drug, determined to be medically necessary and
885 prescribed for an enrollee by a physician using sound clinical
886 judgment, is subject to prior authorization and approved, the
887 managed care plan must provide for sufficient refills to
888 complete the duration of the prescription. If the medication is
889 still clinically appropriate for ongoing therapy after the
890 initial prior authorization expires, the plan must provide a
891 process of expedited review to evaluate ongoing therapy.
892 c. If a prescribed drug requires prior authorization, the
893 managed care plan shall reimburse the pharmacist for dispensing
894 a 72-hour supply of oral maintenance medications to the enrollee
895 and process the prior authorization request. Dispensing a 72
896 hour supply must be consistent with laws that govern pharmacy
897 practice and controlled substances. The managed care plan shall
898 process all prior authorization requests in as timely a manner
899 as possible.
900 d.3. Managed care plans, and their fiscal agents or
901 intermediaries, must accept prior authorization requests for
902 prescribed drugs any service electronically.
903 Section 9. Subsection (11) is added to section 429.23,
904 Florida Statutes, to read:
905 429.23 Internal risk management and quality assurance
906 program; adverse incidents and reporting requirements.—
907 (11) The agency shall annually submit a report to the
908 Legislature on adverse incident reports by assisted living
909 facilities. The report must include the following information
910 arranged by county:
911 (a) A total number of adverse incidents;
912 (b) A listing, by category, of the type of adverse
913 incidents occurring within each category and the type of staff
914 involved;
915 (c) A listing, by category, of the types of injuries, if
916 any, and the number of injuries occurring within each category;
917 (d) Types of liability claims filed based on an adverse
918 incident report or reportable injury; and
919 (e) Disciplinary action taken against staff, categorized by
920 the type of staff involved.
921 Section 10. Present subsections (9), (10), and (11) of
922 section 429.26, Florida Statutes, are renumbered as subsections
923 (12), (13), and (14), respectively, and new subsections (9),
924 (10), and (11) are added to that section, to read:
925 429.26 Appropriateness of placements; examinations of
926 residents.—
927 (9) If, at any time after admission to a facility, agency
928 personnel question whether a resident needs care beyond that
929 which the facility is licensed to provide, the agency may
930 require the resident to be physically examined by a licensed
931 physician, licensed physician assistant, or certified nurse
932 practitioner. To the extent possible, the examination must be
933 performed by the resident’s preferred physician, physician
934 assistant, or nurse practitioner and paid for by the resident
935 with personal funds, except as provided in s. 429.18(2). This
936 subsection does not preclude the agency from imposing sanctions
937 for violations of subsection (1).
938 (a) Following examination, the examining physician,
939 physician assistant, or nurse practitioner shall complete and
940 sign a medical form provided by the agency. The completed
941 medical form must be submitted to the agency within 30 days
942 after the date the facility owner or administrator was notified
943 by the agency that a physical examination is required.
944 (b) A medical review team designated by the agency shall
945 determine whether the resident is appropriately residing in the
946 facility based on the completed medical form and, if necessary,
947 consultation with the physician, physician assistant, or nurse
948 practitioner who performed the examination. Members of the
949 medical review team making the determination may not include the
950 agency personnel who initially questioned the appropriateness of
951 the resident’s placement. The medical review team shall base its
952 decision on a comprehensive review of the resident’s physical
953 and functional status. A determination that the resident’s
954 placement is not appropriate is final and binding upon the
955 facility and the resident.
956 (c) A resident who is determined by the medical review team
957 to be inappropriately residing in a facility shall be given 30
958 days’ written notice to relocate by the owner or administrator,
959 unless the resident’s continued residence in the facility
960 presents an imminent danger to the health, safety, or welfare of
961 the resident or a substantial probability exists that death or
962 serious physical harm to the resident would result if the
963 resident is allowed to remain in the facility.
964 (10) If a mental health resident appears to have needs in
965 addition to those identified in the community living support
966 plan, the agency may require an evaluation by a mental health
967 professional, as determined by the Department of Children and
968 Family Services.
969 (11) A facility may not be required to retain a resident
970 who requires more services or care than the facility is able to
971 provide in accordance with its policies and criteria for
972 admission and continued residency.
973 Section 11. Effective July 1, 2012, section 456.0635,
974 Florida Statutes, is amended to read:
975 456.0635 Health care Medicaid fraud; disqualification for
976 license, certificate, or registration.—
977 (1) Health care Medicaid fraud in the practice of a health
978 care profession is prohibited.
979 (2) Each board under within the jurisdiction of the
980 department, or the department if there is no board, shall refuse
981 to admit a candidate to an any examination and refuse to issue
982 or renew a license, certificate, or registration to an any
983 applicant if the candidate or applicant or any principal,
984 officer, agent, managing employee, or affiliated person of the
985 applicant, has been:
986 (a) Has been convicted of, or entered a plea of guilty or
987 nolo contendere to, regardless of adjudication, a felony under
988 chapter 409, chapter 817, or chapter 893, or a similar felony
989 offense committed in another state or jurisdiction, unless the
990 candidate or applicant has successfully completed a drug court
991 program for that felony and provides proof that the plea has
992 been withdrawn or the charges have been dismissed. Any such
993 conviction or plea shall exclude the applicant or candidate from
994 licensure, examination, certification, or registration 21 U.S.C.
995 ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the sentence and
996 any subsequent period of probation for such conviction or plea
997 pleas ended: more than 15 years prior to the date of the
998 application;
999 1. For felonies of the first or second degree, more than 15
1000 years before the date of application.
1001 2. For felonies of the third degree, more than 10 years
1002 before the date of application, except for felonies of the third
1003 degree under s. 893.13(6)(a).
1004 3. For felonies of the third degree under s. 893.13(6)(a),
1005 more than 5 years before the date of application.
1006 (b) Has been convicted of, or entered a plea of guilty or
1007 nolo contendere to, regardless of adjudication, a felony under
1008 21 U.S.C. ss. 801-970 or 42 U.S.C. ss. 1395-1396, unless the
1009 sentence and any subsequent period of probation for such
1010 conviction or plea ended more than 15 years before the date of
1011 the application.
1012 (c)(b) Has been terminated for cause from the Florida
1013 Medicaid program pursuant to s. 409.913, unless the candidate or
1014 applicant has been in good standing with the Florida Medicaid
1015 program for the most recent 5 years.;
1016 (d)(c) Has been terminated for cause, pursuant to the
1017 appeals procedures established by the state or Federal
1018 Government, from any other state Medicaid program or the federal
1019 Medicare program, unless the candidate or applicant has been in
1020 good standing with that a state Medicaid program or the federal
1021 Medicare program for the most recent 5 years and the termination
1022 occurred at least 20 years before prior to the date of the
1023 application.
1024 (e) Is currently listed on the United States Department of
1025 Health and Human Services Office of Inspector General’s List of
1026 Excluded Individuals and Entities.
1027
1028 This subsection does not apply to candidates or applicants for
1029 initial licensure or certification who were enrolled in an
1030 educational or training program on or before July 1, 2009, which
1031 was recognized by a board or, if there is no board, recognized
1032 by the department, and who applied for licensure after July 1,
1033 2012.
1034 (3) The department shall refuse to renew a license,
1035 certificate, or registration of any applicant if the applicant
1036 or any principal, officer, agent, managing employee, or
1037 affiliated person of the applicant:
1038 (a) Has been convicted of, or entered a plea of guilty or
1039 nolo contendere to, regardless of adjudication, a felony under
1040 chapter 409, chapter 817, or chapter 893, or a similar felony
1041 offense committed in another state or jurisdiction, unless the
1042 applicant is currently enrolled in a drug court program that
1043 allows the withdrawal of the plea for that felony upon
1044 successful completion of that program. Any such conviction or
1045 plea excludes the applicant or candidate from licensure,
1046 examination, certification, or registration unless the sentence
1047 and any subsequent period of probation for such conviction or
1048 plea ended:
1049 1. For felonies of the first or second degree, more than 15
1050 years before the date of application.
1051 2. For felonies of the third degree, more than 10 years
1052 before the date of application, except for felonies of the third
1053 degree under s. 893.13(6)(a).
1054 3. For felonies of the third degree under s. 893.13(6)(a),
1055 more than 5 years before the date of application.
1056 (b) Has been convicted of, or entered a plea of guilty or
1057 nolo contendere to, regardless of adjudication, a felony under
1058 21 U.S.C. ss. 801-970 or 42 U.S.C. ss. 1395-1396 since July 1,
1059 2009, unless the sentence and any subsequent period of probation
1060 for such conviction or plea ended more than 15 years before the
1061 date of the application.
1062 (c) Has been terminated for cause from the Florida Medicaid
1063 program pursuant to s. 409.913, unless the applicant has been in
1064 good standing with the Florida Medicaid program for the most
1065 recent 5 years.
1066 (d) Has been terminated for cause, pursuant to the appeals
1067 procedures established by the state, from any other state
1068 Medicaid program, unless the applicant has been in good standing
1069 with that state Medicaid program for the most recent 5 years and
1070 the termination occurred at least 20 years before the date of
1071 the application.
1072 (e) Is currently listed on the United States Department of
1073 Health and Human Services Office of Inspector General’s List of
1074 Excluded Individuals and Entities.
1075 (4)(3) Licensed health care practitioners shall report
1076 allegations of health care Medicaid fraud to the department,
1077 regardless of the practice setting in which the alleged health
1078 care Medicaid fraud occurred.
1079 (5)(4) The acceptance by a licensing authority of a
1080 licensee’s candidate’s relinquishment of a license which is
1081 offered in response to or anticipation of the filing of
1082 administrative charges alleging health care Medicaid fraud or
1083 similar charges constitutes the permanent revocation of the
1084 license.
1085 Section 12. Effective July 1, 2012, present subsections
1086 (14) and (15) of section 456.036, Florida Statutes, are
1087 renumbered as subsections (15) and (16), respectively, and a new
1088 subsection (14) is added to that section, to read:
1089 456.036 Licenses; active and inactive status; delinquency.—
1090 (14) A person who has been denied license renewal,
1091 certification, or registration under s. 456.0635(3) may regain
1092 licensure, certification, or registration only by meeting the
1093 qualifications and completing the application process for
1094 initial licensure as defined by the board, or the department if
1095 there is no board. However, a person who was denied renewal of
1096 licensure, certification, or registration under s. 24 of chapter
1097 2009-223, Laws of Florida, between July 1, 2009, and June 30,
1098 2012, is not required to retake and pass examinations applicable
1099 for initial licensure, certification, or registration.
1100 Section 13. Subsection (1) of section 456.074, Florida
1101 Statutes, is amended to read:
1102 456.074 Certain health care practitioners; immediate
1103 suspension of license.—
1104 (1) The department shall issue an emergency order
1105 suspending the license of any person licensed under chapter 458,
1106 chapter 459, chapter 460, chapter 461, chapter 462, chapter 463,
1107 chapter 464, chapter 465, chapter 466, or chapter 484 who pleads
1108 guilty to, is convicted or found guilty of, or who enters a plea
1109 of nolo contendere to, regardless of adjudication, to:
1110 (a) A felony under chapter 409, chapter 817, or chapter 893
1111 or under 21 U.S.C. ss. 801-970 or under 42 U.S.C. ss. 1395-1396;
1112 or
1113 (b) A misdemeanor or felony under 18 U.S.C. s. 669, ss.
1114 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s.
1115 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the
1116 Medicaid program.
1117 Section 14. Subsections (3), (4), and (5) of section
1118 463.002, Florida Statutes, are amended to read:
1119 463.002 Definitions.—As used in this chapter, the term:
1120 (3)(a) “Licensed practitioner” means a person who is a
1121 primary health care provider licensed to engage in the practice
1122 of optometry under the authority of this chapter.
1123 (b) A licensed practitioner who is not a certified
1124 optometrist shall be required to display at her or his place of
1125 practice a sign which states, “I am a Licensed Practitioner, not
1126 a Certified Optometrist, and I am not able to prescribe topical
1127 ocular pharmaceutical agents.”
1128 (c) All practitioners initially licensed after July 1,
1129 1993, must be certified optometrists.
1130 (4) “Certified optometrist” means a licensed practitioner
1131 authorized by the board to administer and prescribe topical
1132 ocular pharmaceutical agents.
1133 (5) “Optometry” means the diagnosis of conditions of the
1134 human eye and its appendages; the employment of any objective or
1135 subjective means or methods, including the administration of
1136 topical ocular pharmaceutical agents, for the purpose of
1137 determining the refractive powers of the human eyes, or any
1138 visual, muscular, neurological, or anatomic anomalies of the
1139 human eyes and their appendages; and the prescribing and
1140 employment of lenses, prisms, frames, mountings, contact lenses,
1141 orthoptic exercises, light frequencies, and any other means or
1142 methods, including topical ocular pharmaceutical agents, for the
1143 correction, remedy, or relief of any insufficiencies or abnormal
1144 conditions of the human eyes and their appendages.
1145 Section 15. Paragraph (g) of subsection (1) of section
1146 463.005, Florida Statutes, is amended to read:
1147 463.005 Authority of the board.—
1148 (1) The Board of Optometry has authority to adopt rules
1149 pursuant to ss. 120.536(1) and 120.54 to implement the
1150 provisions of this chapter conferring duties upon it. Such rules
1151 shall include, but not be limited to, rules relating to:
1152 (g) Administration and prescription of topical ocular
1153 pharmaceutical agents.
1154 Section 16. Section 463.0055, Florida Statutes, is amended
1155 to read:
1156 463.0055 Administration and prescription of topical ocular
1157 pharmaceutical agents; committee.—
1158 (1)(a) Certified optometrists may administer and prescribe
1159 topical ocular pharmaceutical agents as provided in this section
1160 for the diagnosis and treatment of ocular conditions of the
1161 human eye and its appendages without the use of surgery or other
1162 invasive techniques. However, a licensed practitioner who is not
1163 certified may use topically applied anesthetics solely for the
1164 purpose of glaucoma examinations, but is otherwise prohibited
1165 from administering or prescribing topical ocular pharmaceutical
1166 agents.
1167 (b) Before a certified optometrist may administer or
1168 prescribe oral ocular pharmaceutical agents, the certified
1169 optometrist must complete a course and subsequent examination on
1170 general and ocular pharmacology which have a particular emphasis
1171 on the ingestion of oral pharmaceutical agents and the side
1172 effects of those agents. For certified optometrists licensed
1173 before January 1, 1990, the course shall consist of 50 contact
1174 hours and 25 of those hours shall be Internet-based. For
1175 certified optometrists licensed on or after January 1, 1990, the
1176 course shall consist of 20 contact hours and 10 of those hours
1177 shall be Internet-based. The first course and examination shall
1178 be presented by January 1, 2013, and shall thereafter be
1179 administered at least annually. The Florida Medical Association
1180 and the Florida Optometric Association shall jointly develop and
1181 administer a course and examination for such purpose and jointly
1182 determine the site or sites for the course and examination.
1183 (2)(a) There is hereby created a committee composed of two
1184 certified optometrists licensed pursuant to this chapter,
1185 appointed by the Board of Optometry, two board-certified
1186 ophthalmologists licensed pursuant to chapter 458 or chapter
1187 459, appointed by the Board of Medicine, and one additional
1188 person with a doctorate degree in pharmacology who is not
1189 licensed pursuant to chapter 458, chapter 459, or this chapter,
1190 appointed by the State Surgeon General. The committee shall
1191 review requests for additions to, deletions from, or
1192 modifications of a formulary of topical ocular pharmaceutical
1193 agents for administration and prescription by certified
1194 optometrists and shall provide to the board advisory opinions
1195 and recommendations on such requests. The formulary of topical
1196 ocular pharmaceutical agents shall consist of those topical
1197 ocular pharmaceutical agents that are appropriate to treat and
1198 diagnose ocular diseases and disorders and that which the
1199 certified optometrist is qualified to use in the practice of
1200 optometry. The board shall establish, add to, delete from, or
1201 modify the formulary by rule. Notwithstanding any provision of
1202 chapter 120 to the contrary, the formulary rule shall become
1203 effective 60 days from the date it is filed with the Secretary
1204 of State.
1205 (b) The topical formulary may be added to, deleted from, or
1206 modified according to the procedure described in paragraph (a).
1207 Any person who requests an addition, deletion, or modification
1208 of an authorized topical ocular pharmaceutical agent shall have
1209 the burden of proof to show cause why such addition, deletion,
1210 or modification should be made.
1211 (c) The State Surgeon General shall have standing to
1212 challenge any rule or proposed rule of the board pursuant to s.
1213 120.56. In addition to challenges for any invalid exercise of
1214 delegated legislative authority, the administrative law judge,
1215 upon such a challenge by the State Surgeon General, may declare
1216 all or part of a rule or proposed rule invalid if it:
1217 1. Does not protect the public from any significant and
1218 discernible harm or damages;
1219 2. Unreasonably restricts competition or the availability
1220 of professional services in the state or in a significant part
1221 of the state; or
1222 3. Unnecessarily increases the cost of professional
1223 services without a corresponding or equivalent public benefit.
1224
1225 However, there shall not be created a presumption of the
1226 existence of any of the conditions cited in this subsection in
1227 the event that the rule or proposed rule is challenged.
1228 (d) Upon adoption of the topical formulary required by this
1229 section, and upon each addition, deletion, or modification to
1230 the topical formulary, the board shall mail a copy of the
1231 amended topical formulary to each certified optometrist and to
1232 each pharmacy licensed by the state.
1233 (3) In addition to the formulary of topical ocular
1234 pharmaceutical agents in subsection (2), there is created a
1235 statutory formulary of oral pharmaceutical agents, which include
1236 the following agents:
1237 (a) The following analgesics, or their generic or
1238 therapeutic equivalents, which may not be administered or
1239 prescribed for more than 72 hours without consultation with a
1240 physician licensed under chapter 458 or chapter 459 who is
1241 skilled in diseases of the eye:
1242 1. Tramadol hydrochloride.
1243 2. Acetaminophen 300 mg with No. 3 codeine phosphate 30 mg.
1244 (b) The following antibiotics, or their generic or
1245 therapeutic equivalents:
1246 1. Amoxicillin.
1247 2. Azithromycin.
1248 3. Ciprofloxacin.
1249 4. Dicloxacillin.
1250 5. Doxycycline.
1251 6. Keflex.
1252 7. Minocycline.
1253 (c) The following antivirals, or their generic or
1254 therapeutic equivalents:
1255 1. Acyclovir.
1256 2. Famciclovir.
1257 3. Valacyclovir.
1258 (d) The following oral anti-glaucoma agents, or their
1259 generic or therapeutic equivalents, which may not be
1260 administered or prescribed for more than 72 hours without
1261 consultation with a physician licensed under chapter 458 or
1262 chapter 459 who is skilled in diseases of the eye:
1263 1. Acetazolamide.
1264 2. Methazolamide.
1265
1266 Any oral pharmaceutical agent listed in the statutory formulary
1267 set forth in this subsection which is subsequently determined by
1268 the United States Food and Drug Administration to be unsafe for
1269 administration or prescription shall be considered to have been
1270 deleted from the formulary of oral pharmaceutical agents. The
1271 oral pharmaceutical agents on the statutory formulary set forth
1272 in this subsection may not otherwise be deleted by the board,
1273 the department, or the State Surgeon General.
1274 (4)(3) A certified optometrist shall be issued a prescriber
1275 number by the board. Any prescription written by a certified
1276 optometrist for a topical ocular pharmaceutical agent pursuant
1277 to this section shall have the prescriber number printed
1278 thereon.
1279 Section 17. Subsection (3) of section 463.0057, Florida
1280 Statutes, is amended to read:
1281 463.0057 Optometric faculty certificate.—
1282 (3) The holder of a faculty certificate may engage in the
1283 practice of optometry as permitted by this section, but may not
1284 administer or prescribe topical ocular pharmaceutical agents
1285 unless the certificateholder has satisfied the requirements of
1286 ss. 463.0055(1)(b) and s. 463.006(1)(b)4. and 5.
1287 Section 18. Subsections (2) and (3) of section 463.006,
1288 Florida Statutes, are amended to read:
1289 463.006 Licensure and certification by examination.—
1290 (2) The examination shall consist of the appropriate
1291 subjects, including applicable state laws and rules and general
1292 and ocular pharmacology with emphasis on the use topical
1293 application and side effects of ocular pharmaceutical agents.
1294 The board may by rule substitute a national examination as part
1295 or all of the examination and may by rule offer a practical
1296 examination in addition to the written examination.
1297 (3) Each applicant who successfully passes the examination
1298 and otherwise meets the requirements of this chapter is entitled
1299 to be licensed as a practitioner and to be certified to
1300 administer and prescribe topical ocular pharmaceutical agents in
1301 the diagnosis and treatment of ocular conditions.
1302 Section 19. Subsections (1) and (2) of section 463.0135,
1303 Florida Statutes, are amended, and subsection (10) is added to
1304 that section, to read:
1305 463.0135 Standards of practice.—
1306 (1) A licensed practitioner shall provide that degree of
1307 care which conforms to that level of care provided by medical
1308 practitioners in the same or similar communities. A certified
1309 optometrist shall administer and prescribe oral ocular
1310 pharmaceutical agents in a manner consistent with applicable
1311 preferred practice patterns of the American Academy of
1312 Ophthalmology. A licensed practitioner shall advise or assist
1313 her or his patient in obtaining further care when the service of
1314 another health care practitioner is required.
1315 (2) A licensed practitioner diagnosing angle closure,
1316 neovascular, infantile, or congenital forms of glaucoma shall
1317 promptly and without unreasonable delay refer the patient to a
1318 physician skilled in diseases of the eye and licensed under
1319 chapter 458 or chapter 459. In addition, a licensed practitioner
1320 shall timely refer any patient who experiences progressive
1321 glaucoma due to failed pharmaceutical intervention to a
1322 physician who is skilled in diseases of the eye and licensed
1323 under chapter 458 or chapter 459.
1324 (10) Comanagement of postoperative care shall be conducted
1325 pursuant to an established protocol that governs the
1326 relationship between the operating surgeon and the optometrist.
1327 The patient shall be informed that either physician will be
1328 available for emergency care throughout the postoperative
1329 period, and the patient shall consent in writing to the
1330 comanagement relationship.
1331 Section 20. Subsections (3) and (4) of section 463.014,
1332 Florida Statutes, are amended to read:
1333 463.014 Certain acts prohibited.—
1334 (3) Prescribing, ordering, dispensing, administering,
1335 supplying, selling, or giving any systemic drugs for the purpose
1336 of treating a systemic disease by a licensed practitioner is
1337 prohibited. However, a certified optometrist is permitted to use
1338 commonly accepted means or methods to immediately address
1339 incidents of anaphylaxis.
1340 (4) Surgery of any kind, including the use of lasers, is
1341 expressly prohibited. For purposes of this subsection, the term
1342 “surgery” means a procedure using an instrument, including
1343 lasers, scalpels, or needles, in which human tissue is cut,
1344 burned, or vaporized by incision, injection, ultrasound, laser,
1345 or radiation. The term includes procedures using instruments
1346 that require closing by suturing, clamping, or another such
1347 device. Certified optometrists may remove superficial foreign
1348 bodies. For the purposes of this subsection, the term
1349 “superficial foreign bodies” means any foreign matter that is
1350 embedded in the conjunctiva or cornea but which has not
1351 penetrated the globe.
1352 Section 21. Section 463.0141, Florida Statutes, is created
1353 to read:
1354 463.0141 Reports of adverse incidents in the practice of
1355 optometry.—
1356 (1) Any adverse incident that occurs on or after January 1,
1357 2013, in the practice of optometry must be reported to the
1358 department in the accordance with this section.
1359 (2) The required notification to the department must be
1360 submitted in writing by certified mail and postmarked within 15
1361 days after the occurrence of the adverse incident.
1362 (3) For purposes of notification to the department, the
1363 term “adverse incident,” as used in this section, means an event
1364 that is associated in whole or in part with the prescribing of
1365 an oral ocular pharmaceutical agent and that results in one of
1366 the following:
1367 (a) Any condition that requires the transfer of a patient
1368 to a hospital licensed under chapter 395;
1369 (b) Any condition that requires the patient to obtain care
1370 from a physician licensed under chapter 458 or chapter 459,
1371 other than a referral or a consultation required under this
1372 chapter;
1373 (c) Permanent physical injury to the patient;
1374 (d) Partial or complete permanent loss of sight by the
1375 patient; or
1376 (e) Death of the patient.
1377 (4) The department shall review each incident and determine
1378 whether it potentially involved conduct by the licensed
1379 practitioner which may be subject to disciplinary action, in
1380 which case s. 456.073 applies. Disciplinary action, if any,
1381 shall be taken by the board.
1382 Section 22. Subsection (1) of section 483.035, Florida
1383 Statutes, is amended to read:
1384 483.035 Clinical laboratories operated by practitioners for
1385 exclusive use; licensure and regulation.—
1386 (1) A clinical laboratory operated by one or more
1387 practitioners licensed under chapter 458, chapter 459, chapter
1388 460, chapter 461, chapter 462, chapter 463, or chapter 466,
1389 exclusively in connection with the diagnosis and treatment of
1390 their own patients, must be licensed under this part and must
1391 comply with the provisions of this part, except that the agency
1392 shall adopt rules for staffing, for personnel, including
1393 education and training of personnel, for proficiency testing,
1394 and for construction standards relating to the licensure and
1395 operation of the laboratory based upon and not exceeding the
1396 same standards contained in the federal Clinical Laboratory
1397 Improvement Amendments of 1988 and the federal regulations
1398 adopted thereunder.
1399 Section 23. Subsection (7) of section 483.041, Florida
1400 Statutes, is amended to read:
1401 483.041 Definitions.—As used in this part, the term:
1402 (7) “Licensed practitioner” means a physician licensed
1403 under chapter 458, chapter 459, chapter 460, or chapter 461, or
1404 chapter 463; a dentist licensed under chapter 466; a person
1405 licensed under chapter 462; or an advanced registered nurse
1406 practitioner licensed under part I of chapter 464; or a duly
1407 licensed practitioner from another state licensed under similar
1408 statutes who orders examinations on materials or specimens for
1409 nonresidents of the State of Florida, but who reside in the same
1410 state as the requesting licensed practitioner.
1411 Section 24. Subsection (5) of section 483.181, Florida
1412 Statutes, is amended to read:
1413 483.181 Acceptance, collection, identification, and
1414 examination of specimens.—
1415 (5) A clinical laboratory licensed under this part must
1416 accept a human specimen submitted for examination by a
1417 practitioner licensed under chapter 458, chapter 459, chapter
1418 460, chapter 461, chapter 462, chapter 463, s. 464.012, or
1419 chapter 466, if the specimen and test are the type performed by
1420 the clinical laboratory. A clinical laboratory may only refuse a
1421 specimen based upon a history of nonpayment for services by the
1422 practitioner. A clinical laboratory shall not charge different
1423 prices for tests based upon the chapter under which a
1424 practitioner submitting a specimen for testing is licensed.
1425 Section 25. Paragraph (a) of subsection (54) of section
1426 499.003, Florida Statutes, is amended to read:
1427 499.003 Definitions of terms used in this part.—As used in
1428 this part, the term:
1429 (54) “Wholesale distribution” means distribution of
1430 prescription drugs to persons other than a consumer or patient,
1431 but does not include:
1432 (a) Any of the following activities, which is not a
1433 violation of s. 499.005(21) if such activity is conducted in
1434 accordance with s. 499.01(2)(g):
1435 1. The purchase or other acquisition by a hospital or other
1436 health care entity that is a member of a group purchasing
1437 organization of a prescription drug for its own use from the
1438 group purchasing organization or from other hospitals or health
1439 care entities that are members of that organization.
1440 2. The sale, purchase, or trade of a prescription drug or
1441 an offer to sell, purchase, or trade a prescription drug by a
1442 charitable organization described in s. 501(c)(3) of the
1443 Internal Revenue Code of 1986, as amended and revised, to a
1444 nonprofit affiliate of the organization to the extent otherwise
1445 permitted by law.
1446 3. The sale, purchase, or trade of a prescription drug or
1447 an offer to sell, purchase, or trade a prescription drug among
1448 hospitals or other health care entities that are under common
1449 control. For purposes of this subparagraph, “common control”
1450 means the power to direct or cause the direction of the
1451 management and policies of a person or an organization, whether
1452 by ownership of stock, by voting rights, by contract, or
1453 otherwise.
1454 4. The sale, purchase, trade, or other transfer of a
1455 prescription drug from or for any federal, state, or local
1456 government agency or any entity eligible to purchase
1457 prescription drugs at public health services prices pursuant to
1458 Pub. L. No. 102-585, s. 602 to a contract provider or its
1459 subcontractor for eligible patients of the agency or entity
1460 under the following conditions:
1461 a. The agency or entity must obtain written authorization
1462 for the sale, purchase, trade, or other transfer of a
1463 prescription drug under this subparagraph from the State Surgeon
1464 General or his or her designee.
1465 b. The contract provider or subcontractor must be
1466 authorized by law to administer or dispense prescription drugs.
1467 c. In the case of a subcontractor, the agency or entity
1468 must be a party to and execute the subcontract.
1469 d. A contract provider or subcontractor must maintain
1470 separate and apart from other prescription drug inventory any
1471 prescription drugs of the agency or entity in its possession.
1472 d.e. The contract provider and subcontractor must maintain
1473 and produce immediately for inspection all records of movement
1474 or transfer of all the prescription drugs belonging to the
1475 agency or entity, including, but not limited to, the records of
1476 receipt and disposition of prescription drugs. Each contractor
1477 and subcontractor dispensing or administering these drugs must
1478 maintain and produce records documenting the dispensing or
1479 administration. Records that are required to be maintained
1480 include, but are not limited to, a perpetual inventory itemizing
1481 drugs received and drugs dispensed by prescription number or
1482 administered by patient identifier, which must be submitted to
1483 the agency or entity quarterly.
1484 e.f. The contract provider or subcontractor may administer
1485 or dispense the prescription drugs only to the eligible patients
1486 of the agency or entity or must return the prescription drugs
1487 for or to the agency or entity. The contract provider or
1488 subcontractor must require proof from each person seeking to
1489 fill a prescription or obtain treatment that the person is an
1490 eligible patient of the agency or entity and must, at a minimum,
1491 maintain a copy of this proof as part of the records of the
1492 contractor or subcontractor required under sub-subparagraph e.
1493 f.g. In addition to the departmental inspection authority
1494 set forth in s. 499.051, the establishment of the contract
1495 provider and subcontractor and all records pertaining to
1496 prescription drugs subject to this subparagraph shall be subject
1497 to inspection by the agency or entity. All records relating to
1498 prescription drugs of a manufacturer under this subparagraph
1499 shall be subject to audit by the manufacturer of those drugs,
1500 without identifying individual patient information.
1501 Section 26. Subsection (4) of section 766.102, Florida
1502 Statutes, is amended to read:
1503 766.102 Medical negligence; standards of recovery; expert
1504 witness.—
1505 (4)(a) The Legislature is cognizant of the changing trends
1506 and techniques for the delivery of health care in this state and
1507 the discretion that is inherent in the diagnosis, care, and
1508 treatment of patients by different health care providers. The
1509 failure of a health care provider to order, perform, or
1510 administer supplemental diagnostic tests is shall not be
1511 actionable if the health care provider acted in good faith and
1512 with due regard for the prevailing professional standard of
1513 care.
1514 (b) The claimant has the burden of proving by clear and
1515 convincing evidence that the alleged actions of the health care
1516 provider represent a breach of the prevailing professional
1517 standard of care in an action for damages based on death or
1518 personal injury which alleges that the death or injury resulted
1519 from the failure of a health care provider to order, perform, or
1520 administer supplemental diagnostic tests.
1521 Section 27. Paragraph (b) of subsection (6) of section
1522 766.106, Florida Statutes, is amended to read:
1523 766.106 Notice before filing action for medical negligence;
1524 presuit screening period; offers for admission of liability and
1525 for arbitration; informal discovery; review.—
1526 (6) INFORMAL DISCOVERY.—
1527 (b) Informal discovery may be used by a party to obtain
1528 unsworn statements, the production of documents or things, and
1529 physical and mental examinations, and ex parte interviews, as
1530 follows:
1531 1. Unsworn statements.—Any party may require other parties
1532 to appear for the taking of an unsworn statement. Such
1533 statements may be used only for the purpose of presuit screening
1534 and are not discoverable or admissible in any civil action for
1535 any purpose by any party. A party desiring to take the unsworn
1536 statement of any party must give reasonable notice in writing to
1537 all parties. The notice must state the time and place for taking
1538 the statement and the name and address of the party to be
1539 examined. Unless otherwise impractical, the examination of any
1540 party must be done at the same time by all other parties. Any
1541 party may be represented by counsel at the taking of an unsworn
1542 statement. An unsworn statement may be recorded electronically,
1543 stenographically, or on videotape. The taking of unsworn
1544 statements is subject to the provisions of the Florida Rules of
1545 Civil Procedure and may be terminated for abuses.
1546 2. Documents or things.—Any party may request discovery of
1547 documents or things. The documents or things must be produced,
1548 at the expense of the requesting party, within 20 days after the
1549 date of receipt of the request. A party is required to produce
1550 discoverable documents or things within that party’s possession
1551 or control. Medical records shall be produced as provided in s.
1552 766.204.
1553 3. Physical and mental examinations.—A prospective
1554 defendant may require an injured claimant to appear for
1555 examination by an appropriate health care provider. The
1556 prospective defendant shall give reasonable notice in writing to
1557 all parties as to the time and place for examination. Unless
1558 otherwise impractical, a claimant is required to submit to only
1559 one examination on behalf of all potential defendants. The
1560 practicality of a single examination must be determined by the
1561 nature of the claimant’s condition, as it relates to the
1562 liability of each prospective defendant. Such examination report
1563 is available to the parties and their attorneys upon payment of
1564 the reasonable cost of reproduction and may be used only for the
1565 purpose of presuit screening. Otherwise, such examination report
1566 is confidential and exempt from the provisions of s. 119.07(1)
1567 and s. 24(a), Art. I of the State Constitution.
1568 4. Written questions.—Any party may request answers to
1569 written questions, the number of which may not exceed 30,
1570 including subparts. A response must be made within 20 days after
1571 receipt of the questions.
1572 5. Unsworn statements of treating health care providers.—A
1573 prospective defendant or his or her legal representative may
1574 also take unsworn statements of the claimant’s treating health
1575 care providers. The statements must be limited to those areas
1576 that are potentially relevant to the claim of personal injury or
1577 wrongful death. Subject to the procedural requirements of
1578 subparagraph 1., a prospective defendant may take unsworn
1579 statements from a claimant’s treating physicians. Reasonable
1580 notice and opportunity to be heard must be given to the claimant
1581 or the claimant’s legal representative before taking unsworn
1582 statements. The claimant or claimant’s legal representative has
1583 the right to attend the taking of such unsworn statements.
1584 6. Ex parte interviews of treating health care providers.—A
1585 prospective defendant or his or her legal representative may
1586 interview the claimant’s treating health care providers without
1587 the presence of the claimant or the claimant’s legal
1588 representative. If a prospective defendant or his or her legal
1589 representative intends to interview a claimant’s health care
1590 providers, the prospective defendant must provide the claimant
1591 with notice of such interview at least 10 days before the date
1592 of the interview.
1593 Section 28. Section 766.1091, Florida Statutes, is created
1594 to read:
1595 766.1091 Voluntary binding arbitration; damages.—
1596 (1) A health care provider licensed under chapter 458,
1597 chapter 459, chapter 463, or chapter 466; any entity owned in
1598 whole or in part by a health care provider licensed under
1599 chapter 458, chapter 459, chapter 463, or chapter 466; or any
1600 health care clinic licensed under part X of chapter 400, and a
1601 patient or prospective patient, may agree in writing to submit
1602 to arbitration any claim for medical negligence which may
1603 currently exist or may accrue in the future and would otherwise
1604 be brought pursuant to this chapter. Any arbitration agreement
1605 entered into pursuant to this section shall be governed by
1606 chapter 682.
1607 (2) Any arbitration agreement entered into pursuant to
1608 subsection (1) may contain a provision that limits the available
1609 damages in an arbitration award.
1610 Section 29. Subsection (21) of section 893.02, Florida
1611 Statutes, is amended to read:
1612 893.02 Definitions.—The following words and phrases as used
1613 in this chapter shall have the following meanings, unless the
1614 context otherwise requires:
1615 (21) “Practitioner” means a physician licensed pursuant to
1616 chapter 458, a dentist licensed pursuant to chapter 466, a
1617 veterinarian licensed pursuant to chapter 474, an osteopathic
1618 physician licensed pursuant to chapter 459, a naturopath
1619 licensed pursuant to chapter 462, a certified optometrist
1620 licensed under chapter 463, or a podiatric physician licensed
1621 pursuant to chapter 461, provided such practitioner holds a
1622 valid federal controlled substance registry number.
1623 Section 30. Subsection (1) of section 893.05, Florida
1624 Statutes, is amended to read:
1625 893.05 Practitioners and persons administering controlled
1626 substances in their absence.—
1627 (1) A practitioner, in good faith and in the course of his
1628 or her professional practice only, may prescribe, administer,
1629 dispense, mix, or otherwise prepare a controlled substance, or
1630 the practitioner may cause the same to be administered by a
1631 licensed nurse or an intern practitioner under his or her
1632 direction and supervision only. A veterinarian may so prescribe,
1633 administer, dispense, mix, or prepare a controlled substance for
1634 use on animals only, and may cause it to be administered by an
1635 assistant or orderly under the veterinarian’s direction and
1636 supervision only. A certified optometrist licensed under chapter
1637 463 may not administer or prescribe pharmaceutical agents in
1638 Schedule I or Schedule II of the Florida Comprehensive Drug
1639 Abuse Prevention and Control Act.
1640 Section 31. The Agency for Health Care Administration shall
1641 prepare a report within 18 months after the implementation of an
1642 expansion of managed care to new populations or the provision of
1643 new items and services. The agency shall post a draft of the
1644 report on its website and provide an opportunity for public
1645 comment. The final report shall be submitted to the Legislature,
1646 along with a description of the process for public input. The
1647 report must include an assessment of:
1648 (1) The impact of managed care on patient access to care,
1649 including an evaluation of any new barriers to the use of
1650 services and prescription drugs, created by the use of medical
1651 management or cost-containment tools.
1652 (2) The impact of the increased managed care expansion on
1653 the utilization of services, quality of care, and patient
1654 outcomes.
1655 (3) The use of prior authorization and other utilization
1656 management tools, including an assessment of whether these tools
1657 pose an undue administrative burden for health care providers or
1658 create barriers to needed care.
1659 Section 32. Except as otherwise expressly provided in this
1660 act, this act shall take effect upon becoming a law.
1661
1662 ================= T I T L E A M E N D M E N T ================
1663 And the title is amended as follows:
1664 Delete everything before the enacting clause
1665 and insert:
1666 A bill to be entitled
1667 An act relating to health care; amending s. 395.002,
1668 F.S.; redefining the term “accrediting organizations”
1669 as it applies to the regulation of hospitals and other
1670 licensed facilities; amending s. 400.474, F.S.;
1671 revising the fine that may be imposed against a home
1672 health agency for failing to timely submit certain
1673 information to the Agency for Health Care
1674 Administration; amending s. 400.9905, F.S.; revising
1675 the definition of the term “clinic” as it relates to
1676 the Health Care Clinic Act; amending s. 409.221, F.S.;
1677 revising the background screening requirements for
1678 persons rendering care in the consumer-directed care
1679 program administered by the Agency for Health Care
1680 Administration; amending s. 409.907, F.S.; extending
1681 the records-retention period for certain Medicaid
1682 provider records; revising the provider agreement to
1683 require Medicaid providers to report changes in any
1684 principal of the provider to the agency; defining the
1685 term “administrative fines” for purposes of revoking a
1686 Medicaid provider agreement due to changes of
1687 ownership; authorizing, rather than requiring, an
1688 onsite inspection of a Medicaid provider’s service
1689 location before entering into a provider agreement;
1690 specifying the principals of a hospital or nursing
1691 home provider for the purposes of submitting
1692 fingerprints for background screening; removing
1693 certain providers from being subject to agency
1694 background checks; amending s. 409.913, F.S.; defining
1695 the term “Medicaid provider” or “provider” for
1696 purposes of oversight of the integrity of the Medicaid
1697 program; authorizing the agency to review and analyze
1698 information from sources other than Medicaid-enrolled
1699 providers for purposes of determining fraud, abuse,
1700 overpayment, or neglect; extending the records
1701 retention period for certain Medicaid provider
1702 records; revising the grounds for terminating a
1703 provider from the Medicaid program; requiring the
1704 agency to base its overpayment audit reports on
1705 certain information; deleting a requirement that the
1706 agency pay interest on certain withheld Medicaid
1707 payments; requiring payment arrangements for
1708 overpayments and fines to be made within a certain
1709 time; specifying that the venue for all Medicaid
1710 program integrity cases lies in Leon County;
1711 authorizing the agency and the Medicaid Fraud Control
1712 Unit to review certain records; amending s. 409.920,
1713 F.S.; clarifying the applicability of immunity from
1714 civil liability extended to persons who provide
1715 information about fraud or suspected fraudulent acts
1716 by a Medicaid provider; amending s. 409.967, F.S.;
1717 specifying required components of a Medicaid managed
1718 care plan relating to the provisions of medications;
1719 amending s. 429.23, F.S.; requiring the agency to
1720 submit a report to the Legislature on adverse incident
1721 reports from assisted living facilities; amending s.
1722 429.26, F.S.; authorizing the agency to require a
1723 resident of an assisted living facility to undergo a
1724 physical examination if the agency questions the
1725 appropriateness of the resident’s placement in that
1726 facility; authorizing release of the results of the
1727 examination to a medical review team to be used along
1728 with additional information to determine whether the
1729 resident’s placement in the assisted living facility
1730 is appropriate; providing for resident notification
1731 and relocation if the resident’s continued placement
1732 in the facility is not appropriate; authorizing the
1733 agency to require the evaluation of a mental health
1734 resident by a mental health professional; authorizing
1735 an assisted living facility to discharge a resident
1736 who requires more services or care than the facility
1737 is able to provide; amending s. 456.0635, F.S.;
1738 revising the grounds under which the Department of
1739 Health or corresponding board is required to refuse to
1740 admit a candidate to an examination and refuse to
1741 issue or renew a license, certificate, or registration
1742 of a health care practitioner; providing an exception;
1743 amending s. 456.036, F.S.; providing that all persons
1744 who were denied renewal of licensure, certification,
1745 or registration under s. 456.0635(3), F.S., may regain
1746 licensure, certification, or registration only by
1747 completing the application process for initial
1748 licensure; providing an exception; amending s.
1749 456.074, F.S.; revising the federal offenses for which
1750 the Department of Health must issue an emergency order
1751 suspending the license of certain health care
1752 professionals; amending s. 463.002, F.S.; conforming
1753 provisions to changes made by the act; amending s.
1754 463.005, F.S.; authorizing the Board of Optometry to
1755 adopt rules for the administration and prescription of
1756 ocular pharmaceutical agents; amending s. 463.0055,
1757 F.S.; authorizing certified optometrists to administer
1758 and prescribe pharmaceutical agents under certain
1759 circumstances; requiring that a certified optometrist
1760 complete a course and subsequent examination on
1761 general and ocular pharmacology; providing
1762 requirements for the course; requiring that the
1763 Florida Medical Association and the Florida Optometric
1764 Association jointly develop and administer the course
1765 and examination; revising qualifications of certain
1766 members of the formulary committee; providing for a
1767 formulary of topical ocular pharmaceutical agents
1768 which the committee may modify; specifying the agents
1769 that make up the statutory formulary of oral
1770 pharmaceutical agents; authorizing the deletion of an
1771 oral pharmaceutical agent listed in the statutory
1772 formulary under certain circumstances; prohibiting the
1773 board, the Department of Health, or the State Surgeon
1774 General from deleting an oral pharmaceutical agent
1775 listed in the statutory formulary; amending ss.
1776 463.0057 and 463.006, F.S.; conforming provisions to
1777 changes made by the act; amending s. 463.0135, F.S.;
1778 requiring that a certified optometrist administer and
1779 prescribe oral ocular pharmaceutical agents in a
1780 certain manner; requiring that a licensed practitioner
1781 who diagnoses a patient who has a neovascular form of
1782 glaucoma or progressive glaucoma immediately refer the
1783 patient to a physician who is skilled in the diseases
1784 of the eye; requiring that comanagement of
1785 postoperative care be conducted pursuant to an
1786 established protocol; requiring that the patient be
1787 informed that a physician will be available for
1788 emergency care throughout the postoperative period;
1789 requiring that the patient consent in writing to the
1790 comanagement relationship; amending s. 463.014, F.S.;
1791 revising certain prohibited acts regarding an
1792 optometrist conducting surgery and dispensing,
1793 administering, ordering, supplying, or selling certain
1794 drugs; creating s. 463.0141, F.S.; requiring that
1795 adverse incidents in the practice of optometry be
1796 reported to the Department of Health; providing
1797 requirements for notifying the department of an
1798 adverse incident; providing a definition; requiring
1799 that the department review each incident and determine
1800 whether it involved conduct that is subject to
1801 disciplinary action; requiring that the Board of
1802 Optometry take disciplinary action if necessary;
1803 amending s. 483.035, F.S., relating to licensure and
1804 regulation of clinical laboratories operated by
1805 practitioners for exclusive use; providing
1806 applicability to clinical laboratories operated by
1807 practitioners licensed to practice optometry; amending
1808 s. 483.041, F.S.; revising the definition of the term
1809 “licensed practitioner” to include a practitioner
1810 licensed under ch. 463, F.S.; amending s. 483.181,
1811 F.S.; requiring clinical laboratories to accept human
1812 specimens submitted by practitioners licensed to
1813 practice under ch. 463, F.S.; amending s. 499.003,
1814 F.S.; removing a requirement that a contract provider
1815 or subcontractor maintain prescription drugs of the
1816 agency or entity in its possession separate and apart
1817 from other prescription drugs; amending s. 766.102,
1818 F.S.; providing that the claimant has the burden of
1819 proving by clear and convincing evidence that the
1820 actions of a health care provider represented a breach
1821 of the prevailing professional standard of care in an
1822 action for damages based on death or personal injury
1823 which alleges that the death or injury resulted from
1824 the failure of a health care provider to order,
1825 perform, or administer supplemental diagnostic tests;
1826 amending s. 766.106, F.S.; authorizing a prospective
1827 defendant to obtain informal discovery by conducting
1828 ex parte interviews of treating health care providers;
1829 requiring advance notice to the claimant of an ex
1830 parte interview; creating s. 766.1091, F.S.;
1831 authorizing a health care provider or health care
1832 clinic and a patient to agree to submit a claim of
1833 medical negligence to arbitration; requiring that the
1834 arbitration agreement be governed by ch. 682, F.S.;
1835 authorizing the arbitration agreement to contain a
1836 provision that limits an award of damages; amending s.
1837 893.02, F.S.; revising the definition of the term
1838 “practitioner” to include certified optometrists for
1839 purposes of the Florida Comprehensive Drug Abuse
1840 Prevention and Control Act; amending s. 893.05, F.S.;
1841 prohibiting certified optometrists from administering
1842 and prescribing certain controlled substances;
1843 requiring the Agency for Health Care Administration to
1844 prepare a report for public comment and submission to
1845 the Legislature following the expansion of services to
1846 new populations or of new services; providing
1847 effective dates.