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