Senate Bill 2124c1

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    Florida Senate - 1999                  CS for SB's 2124 & 2022

    By the Committee on Health, Aging and Long-Term Care; and
    Senator Saunders




    317-2164A-99

  1                      A bill to be entitled

  2         An act relating to Medicaid; amending s.

  3         409.906, F.S.; authorizing the Agency for

  4         Health Care Administration to develop a

  5         certified-match program for Healthy Start

  6         services under certain circumstances; amending

  7         s. 409.910, F.S.; providing for use of Medicare

  8         standard billing formats for certain

  9         data-exchange purposes; creating s. 409.9101,

10         F.S.; providing a short title; providing

11         legislative intent relating to Medicaid estate

12         recovery; requiring certain notice of

13         administration of the estate of a deceased

14         Medicaid recipient; providing that receipt of

15         Medicaid benefits creates a claim and interest

16         by the agency against an estate; specifying the

17         right of the agency to amend the amount of its

18         claim based on medical claims submitted by

19         providers subsequent to the agency's initial

20         claim calculation; providing the basis of

21         calculation of the amount of the agency's

22         claim; specifying a claim's class standing;

23         providing circumstances for nonenforcement of

24         claims; providing criteria for use in

25         considering hardship requests; providing for

26         recovery when estate assets result from a claim

27         against a third party; providing for estate

28         recovery in instances involving real property;

29         providing agency rulemaking authority; amending

30         s. 409.912, F.S.; eliminating a requirement

31         that a Medicaid provider service network

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  1         demonstration project be located in Orange

  2         County; amending s. 409.913, F.S.; revising

  3         provisions relating to the agency's authority

  4         to withhold Medicaid payments pending

  5         completion of certain legal proceedings;

  6         providing for disbursement of withheld Medicaid

  7         provider payments; creating s. 409.9131, F.S.;

  8         providing legislative findings and intent

  9         relating to integrity of the Medicaid program;

10         providing definitions; authorizing onsite

11         reviews of physician records by the agency;

12         requiring notice for such reviews; requiring

13         notice of due process rights in certain

14         circumstances; specifying procedures for

15         determinations of overpayment; requiring a

16         study of certain statistical models used by the

17         agency; requiring a report; amending ss.

18         641.261 and 641.411, F.S.; conforming

19         references and cross-references; amending s.

20         733.212, F.S.; establishing the agency as a

21         reasonably ascertainable creditor with respect

22         to administration of certain estates; providing

23         an effective date.

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25  Be It Enacted by the Legislature of the State of Florida:

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27         Section 1.  Subsection (11) of section 409.906, Florida

28  Statutes, 1998 Supplement, is amended to read:

29         409.906  Optional Medicaid services.--Subject to

30  specific appropriations, the agency may make payments for

31  services which are optional to the state under Title XIX of

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  1  the Social Security Act and are furnished by Medicaid

  2  providers to recipients who are determined to be eligible on

  3  the dates on which the services were provided.  Any optional

  4  service that is provided shall be provided only when medically

  5  necessary and in accordance with state and federal law.

  6  Nothing in this section shall be construed to prevent or limit

  7  the agency from adjusting fees, reimbursement rates, lengths

  8  of stay, number of visits, or number of services, or making

  9  any other adjustments necessary to comply with the

10  availability of moneys and any limitations or directions

11  provided for in the General Appropriations Act or chapter 216.

12  Optional services may include:

13         (11)  HEALTHY START SERVICES.--The agency may pay for a

14  continuum of risk-appropriate medical and psychosocial

15  services for the Healthy Start program in accordance with a

16  federal waiver. The agency may not implement the federal

17  waiver unless the waiver permits the state to limit enrollment

18  or the amount, duration, and scope of services to ensure that

19  expenditures will not exceed funds appropriated by the

20  Legislature or available from local sources. If the Health

21  Care Financing Administration does not approve a federal

22  waiver for Healthy Start services, the agency, in consultation

23  with the Department of Health and the Florida Association of

24  Healthy Start Coalitions, is authorized to establish a

25  Medicaid certified-match program for Healthy Start services.

26  Participation in the Healthy Start certified-match program

27  shall be voluntary and reimbursement shall be limited to the

28  federal Medicaid share to Medicaid-enrolled Healthy Start

29  coalitions for services provided to Medicaid recipients. The

30  agency shall take no action to implement a certified-match

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  1  program without ensuring that the amendment and review

  2  requirements of ss. 216.177 and 216.181 have been met.

  3         Section 2.  Subsection (21) of section 409.910, Florida

  4  Statutes, 1998 Supplement, is renumbered as subsection (22),

  5  and a new subsection (21) is added to that section to read:

  6         409.910  Responsibility for payments on behalf of

  7  Medicaid-eligible persons when other parties are liable.--

  8         (21)  Entities providing health insurance as defined in

  9  s. 624.603, and health maintenance organizations as defined in

10  chapter 641, requiring tape or electronic billing formats from

11  the agency shall accept Medicaid billings that are prepared

12  using the current Medicare standard billing format. If the

13  insurance entity or health maintenance organization is unable

14  to use the agency format, the entity shall accept paper claims

15  from the agency in lieu of tape or electronic billing,

16  provided that these claims are prepared using current Medicare

17  standard billing formats.

18         Section 3.  Section 409.9101, Florida Statutes, is

19  created to read:

20         409.9101  Recovery for payments made on behalf of

21  Medicaid-eligible persons.--

22         (1)  This section may be cited as the "Medicaid Estate

23  Recovery Act."

24         (2)  It is the intent of the Legislature by this

25  section to supplement Medicaid funds that are used to provide

26  medical services to eligible persons. Medicaid estate recovery

27  shall generally be accomplished through the filing of claims

28  against the estates of deceased Medicaid recipients. The

29  recoveries shall be made pursuant to federal authority in s.

30  13612 of the Omnibus Budget Reconciliation Act of 1993, which

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  1  amends s. 1917(b)(1) of the Social Security Act (42 U.S.C. s.

  2  1396p(b)(1)).

  3         (3)  Pursuant to s. 733.212(4)(a), the personal

  4  representative of the estate of the decedent shall serve the

  5  agency with a copy of the notice of administration of the

  6  estate within 3 months after the first publication of the

  7  notice, unless the agency has already filed a claim pursuant

  8  to this section.

  9         (4)  The acceptance of public medical assistance, as

10  defined by Title XIX (Medicaid) of the Social Security Act,

11  including mandatory and optional supplemental payments under

12  the Social Security Act, shall create a claim, as defined in

13  s. 731.201, in favor of the agency as an interested person as

14  defined in s. 731.201. The claim amount is calculated as the

15  total amount paid to or for the benefit of the recipient for

16  medical assistance on behalf of the recipient after he or she

17  reached 55 years of age. There is no claim under this section

18  against estates of recipients who had not yet reached 55 years

19  of age.

20         (5)  At the time of filing the claim, the agency may

21  reserve the right to amend the claim amounts based on medical

22  claims submitted by providers subsequent to the agency's

23  initial claim calculation.

24         (6)  The claim of the agency shall be the current total

25  allowable amount of Medicaid payments as denoted in the

26  agency's provider payment processing system at the time the

27  agency's claim or amendment is filed. The agency's provider

28  processing system reports shall be admissible as prima facie

29  evidence in substantiating the agency's claim.

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    Florida Senate - 1999                  CS for SB's 2124 & 2022
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  1         (7)  The claim of the agency under this section shall

  2  constitute a Class 3 claim under s. 733.707(1)(c), as provided

  3  in s. 414.28(1).

  4         (8)  The claim created under this section shall not be

  5  enforced if the recipient is survived by:

  6         (a)  A spouse;

  7         (b)  A child or children under 21 years of age; or

  8         (c)  A child or children who are blind or permanently

  9  and totally disabled pursuant to the eligibility requirements

10  of Title XIX of the Social Security Act.

11         (9)  In accordance with s. 4, Art. X of the State

12  Constitution, no claim under this section shall be enforced

13  against any property that is determined to be the homestead of

14  the deceased Medicaid recipient and is determined to be exempt

15  from the claims of creditors of the deceased Medicaid

16  recipient.

17         (10)  The agency shall not recover from an estate if

18  doing so would cause undue hardship for the qualified heirs,

19  as defined in s. 731.201. The personal representative of an

20  estate and any heir may request that the agency waive recovery

21  of any or all of the debt when recovery would create a

22  hardship. A hardship does not exist solely because recovery

23  will prevent any heirs from receiving an anticipated

24  inheritance. The following criteria shall be considered by the

25  agency in reviewing a hardship request:

26         (a)  The heir:

27         1.  Currently resides in the residence of the decedent;

28         2.  Resided there at the time of the death of the

29  decedent;

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  1         3.  Has made the residence his or her primary residence

  2  for the 12 months immediately preceding the death of the

  3  decedent; and

  4         4.  Owns no other residence;

  5         (b)  The heir would be deprived of food, clothing,

  6  shelter, or medical care necessary for the maintenance of life

  7  or health;

  8         (c)  The heir can document that he or she provided

  9  full-time care to the recipient which delayed the recipient's

10  entry into a nursing home. The heir must be either the

11  decedent's sibling or the son or daughter of the decedent and

12  must have resided with the recipient for at least 1 year prior

13  to the recipient's death; or

14         (d)  The cost involved in the sale of the property

15  would be equal to or greater than the value of the property.

16         (11)  Instances arise in Medicaid estate-recovery cases

17  where the assets include a settlement of a claim against a

18  liable third party. The agency's claim under s. 409.910 must

19  be satisfied prior to including the settlement proceeds as

20  estate assets. The remaining settlement proceeds shall be

21  included in the estate and be available to satisfy the

22  Medicaid estate-recovery claim. The Medicaid estate-recovery

23  share shall be one-half of the settlement proceeds included in

24  the estate. Nothing in this subsection is intended to limit

25  the agency's rights against other assets in the estate not

26  related to the settlement. However, in no circumstances shall

27  the agency's recovery exceed the total amount of Medicaid

28  medical assistance provided to the recipient.

29         (12)  In instances where there are no liquid assets to

30  satisfy the Medicaid estate-recovery claim, if there is

31  nonhomestead real property and the costs of sale will not

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  1  exceed the proceeds, the property shall be sold to satisfy the

  2  Medicaid estate-recovery claim. Real property shall not be

  3  transferred to the agency in any instance.

  4         (13)  The agency is authorized to adopt rules to

  5  implement the provisions of this section.

  6         Section 4.  Paragraph (d) of subsection (3) of section

  7  409.912, Florida Statutes, 1998 Supplement, is amended to

  8  read:

  9         409.912  Cost-effective purchasing of health care.--The

10  agency shall purchase goods and services for Medicaid

11  recipients in the most cost-effective manner consistent with

12  the delivery of quality medical care.  The agency shall

13  maximize the use of prepaid per capita and prepaid aggregate

14  fixed-sum basis services when appropriate and other

15  alternative service delivery and reimbursement methodologies,

16  including competitive bidding pursuant to s. 287.057, designed

17  to facilitate the cost-effective purchase of a case-managed

18  continuum of care. The agency shall also require providers to

19  minimize the exposure of recipients to the need for acute

20  inpatient, custodial, and other institutional care and the

21  inappropriate or unnecessary use of high-cost services.

22         (3)  The agency may contract with:

23         (d)  No more than four provider service networks for

24  demonstration projects to test Medicaid direct contracting.

25  One demonstration project must be located in Orange County.

26  The demonstration projects may be reimbursed on a

27  fee-for-service or prepaid basis.  A provider service network

28  which is reimbursed by the agency on a prepaid basis shall be

29  exempt from parts I and III of chapter 641, but must meet

30  appropriate financial reserve, quality assurance, and patient

31  rights requirements as established by the agency.  The agency

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  1  shall award contracts on a competitive bid basis and shall

  2  select bidders based upon price and quality of care. Medicaid

  3  recipients assigned to a demonstration project shall be chosen

  4  equally from those who would otherwise have been assigned to

  5  prepaid plans and MediPass.  The agency is authorized to seek

  6  federal Medicaid waivers as necessary to implement the

  7  provisions of this section.  A demonstration project awarded

  8  pursuant to this paragraph shall be for 2 years from the date

  9  of implementation.

10         Section 5.  Paragraph (a) of subsection (24) of section

11  409.913, Florida Statutes, is amended to read:

12         409.913  Oversight of the integrity of the Medicaid

13  program.--The agency shall operate a program to oversee the

14  activities of Florida Medicaid recipients, and providers and

15  their representatives, to ensure that fraudulent and abusive

16  behavior and neglect of recipients occur to the minimum extent

17  possible, and to recover overpayments and impose sanctions as

18  appropriate.

19         (24)(a)  The agency may withhold Medicaid payments, in

20  whole or in part, to a provider upon receipt of reliable

21  evidence that the circumstances giving rise to the need for a

22  withholding of payments involve fraud or willful

23  misrepresentation under the Medicaid program, or a crime

24  committed while rendering goods or services to Medicaid

25  recipients, up to the amount of the overpayment as determined

26  by final agency audit report, pending completion of legal

27  proceedings under this section. If the agency withholds

28  payments under this section, the Medicaid payment may not be

29  reduced by more than 10 percent. If it is has been determined

30  that fraud, willful misrepresentation, or a crime did not

31  occur an overpayment has not occurred, the payments withheld

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  1  must be paid to the provider within 14 60 days after such

  2  determination with interest at the rate of 10 percent a year.

  3  Any money withheld in accordance with this paragraph shall be

  4  placed in a suspended account, readily accessible to the

  5  agency, so that any payment ultimately due the provider shall

  6  be made within 14 days. Furthermore, the authority to withhold

  7  payments under this paragraph shall not apply to physicians

  8  whose alleged overpayments are being determined by

  9  administrative proceedings pursuant to chapter 120. If the

10  amount of the alleged overpayment exceeds $75,000, the agency

11  may reduce the Medicaid payments by up to $25,000 per month.

12         Section 6.  Section 409.9131, Florida Statutes, is

13  created to read:

14         409.9131  Special provisions relating to integrity of

15  the Medicaid program.--

16         (1)  LEGISLATIVE FINDINGS AND INTENT.--It is the intent

17  of the Legislature that physicians, as defined in this

18  section, be subject to Medicaid fraud and abuse investigations

19  in accordance with the provisions set forth in this section as

20  a supplement to the provisions contained in s. 409.913.  If a

21  conflict exists between the provisions of this section and s.

22  409.913, it is the intent of the Legislature that the

23  provisions of this section shall control.

24         (2)  DEFINITIONS.--For purposes of this section, the

25  term:

26         (a)  "Active practice" means a physician must have

27  regularly provided medical care and treatment to patients

28  within the past 2 years.

29         (b)  "Medical necessity" or "medically necessary" means

30  any goods or services necessary to palliate the effects of a

31  terminal condition or to prevent, diagnose, correct, cure,

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  1  alleviate, or preclude deterioration of a condition that

  2  threatens life, causes pain or suffering, or results in

  3  illness or infirmity, which goods or services are provided in

  4  accordance with generally accepted standards of medical

  5  practice.  For purposes of determining Medicaid reimbursement,

  6  the agency is the final arbiter of medical necessity.  In

  7  making determinations of medical necessity, the agency must,

  8  to the maximum extent possible, use a physician in active

  9  practice, either employed by or under contract with the

10  agency, of the same specialty or subspecialty as the physician

11  under review.  Such determination must be based upon the

12  information available at the time the goods or services were

13  provided.

14         (c)  "Peer" means a Florida licensed physician who is,

15  to the maximum extent possible, of the same specialty or

16  subspecialty, licensed under the same chapter, and in active

17  practice.

18         (d)  "Peer review" means an evaluation of the

19  professional practices of a Medicaid physician provider by a

20  peer or peers in order to assess the medical necessity,

21  appropriateness, and quality of care provided, as such care is

22  compared to that customarily furnished by the physician's

23  peers and to recognized health care standards, and to

24  determine whether the documentation in the physician's records

25  is adequate.

26         (e)  "Physician" means a person licensed to practice

27  medicine under chapter 458 or a person licensed to practice

28  osteopathic medicine under chapter 459.

29         (f)  "Professional services" means procedures provided

30  to a Medicaid recipient, either directly by or under the

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  1  supervision of a physician who is a registered provider for

  2  the Medicaid program.

  3         (3)  ONSITE RECORDS REVIEW.--As specified in s.

  4  409.913(8), the agency may investigate, review, or analyze a

  5  physician's medical records concerning Medicaid patients. The

  6  physician must make such records available to the agency

  7  during normal business hours. The agency must provide notice

  8  to the physician at least 24 hours before such visit. The

  9  agency and physician shall make every effort to set a mutually

10  agreeable time for the agency's visit during normal business

11  hours and within the 24-hour period. If such a time cannot be

12  agreed upon, the agency may set the time.

13         (4)  NOTICE OF DUE PROCESS RIGHTS REQUIRED.--Whenever

14  the agency seeks an administrative remedy against a physician

15  pursuant to this section or s. 409.913, the physician must be

16  advised of his or her rights to due process under chapter 120.

17  This provision shall not limit or hinder the agency's ability

18  to pursue any remedy available to it under s. 409.913 or other

19  applicable law.

20         (5)  DETERMINATIONS OF OVERPAYMENT.--In making a

21  determination of overpayment to a physician, the agency must:

22         (a)  Use accepted and valid auditing, accounting,

23  analytical, statistical, or peer-review methods, or

24  combinations thereof. Appropriate statistical methods may

25  include, but are not limited to, sampling and extension to the

26  population, parametric and nonparametric statistics, tests of

27  hypotheses, other generally accepted statistical methods,

28  review of medical records, and a consideration of the

29  physician's client case mix. Before performing a review of the

30  physician's Medicaid records, however, the agency shall make

31  every effort to consider the physician's patient case mix,

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  1  including, but not limited to, patient age and whether

  2  individual patients are clients of the Children's Medical

  3  Services network established in chapter 391. In meeting its

  4  burden of proof in any administrative or court proceeding, the

  5  agency may introduce the results of such statistical methods

  6  and its other audit findings as evidence of overpayment.

  7         (b)  Refer all physician service claims for peer review

  8  when the agency's preliminary analysis indicates a potential

  9  overpayment, and before any formal proceedings are initiated

10  against the physician, except as required by s. 409.913.

11         (c)  By March 1, 2000, the agency shall study and

12  report to the Legislature on its current statistical model

13  used to calculate overpayments and advise the Legislature

14  what, if any, changes, improvements, or other modifications

15  should be made to the statistical model. Such review shall

16  include, but not be limited to, a review of the

17  appropriateness of including physician specialty and case-mix

18  parameters within the statistical model.

19         Section 7.  Section 641.261, Florida Statutes, is

20  amended to read:

21         641.261  Other reporting requirements.--

22         (1)  Each authorized health maintenance organization

23  shall provide records and information to the Agency for Health

24  Care Administration Department of Health and Rehabilitative

25  Services pursuant to s. 409.910(20) and (21) (22) for the sole

26  purpose of identifying potential coverage for claims filed

27  with the agency Department of Health and Rehabilitative

28  Services and its fiscal agents for payment of medical services

29  under the Medicaid program.

30         (2)  Any information provided by a health maintenance

31  organization under this section to the agency Department of

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  1  Health and Rehabilitative Services shall not be considered a

  2  violation of any right of confidentiality or contract that the

  3  health maintenance organization may have with covered persons.

  4  The health maintenance organization is immune from any

  5  liability that it may otherwise incur through its release of

  6  information to the agency Department of Health and

  7  Rehabilitative Services under this section.

  8         Section 8.  Section 641.411, Florida Statutes, is

  9  amended to read:

10         641.411  Other reporting requirements.--

11         (1)  Each prepaid health clinic shall provide records

12  and information to the Agency for Health Care Administration

13  Department of Health and Rehabilitative Services pursuant to

14  s. 409.910(20) and (21) (22) for the sole purpose of

15  identifying potential coverage for claims filed with the

16  agency Department of Health and Rehabilitative Services and

17  its fiscal agents for payment of medical services under the

18  Medicaid program.

19         (2)  Any information provided by a prepaid health

20  clinic under this section to the agency Department of Health

21  and Rehabilitative Services shall not be considered a

22  violation of any right of confidentiality or contract that the

23  prepaid health clinic may have with covered persons.  The

24  prepaid health clinic is immune from any liability that it may

25  otherwise incur through its release of information to the

26  agency Department of Health and Rehabilitative Services under

27  this section.

28         Section 9.  Paragraph (a) of subsection (4) of section

29  733.212, Florida Statutes, is amended to read:

30         733.212  Notice of administration; filing of objections

31  and claims.--

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  1         (4)(a)  The personal representative shall promptly make

  2  a diligent search to determine the names and addresses of

  3  creditors of the decedent who are reasonably ascertainable and

  4  shall serve on those creditors a copy of the notice within 3

  5  months after the first publication of the notice. Under s.

  6  409.9101, the Agency for Health Care Administration is

  7  considered a reasonably ascertainable creditor in instances

  8  where the decedent had received Medicaid assistance for

  9  medical care after reaching 55 years of age. Impracticable and

10  extended searches are not required.  Service is not required

11  on any creditor who has filed a claim as provided in this

12  part; a creditor whose claim has been paid in full; or a

13  creditor whose claim is listed in a personal representative's

14  timely proof of claim if the personal representative notified

15  the creditor of that listing.

16         Section 10.  This act shall take effect July 1, 1999.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                    Senate Bills 2124 and 2022

  3

  4  The bill combines the provisions of Senate Bill 2124 and
    Senate Bill 2022. The bill enables the agency for Health Care
  5  Administration (agency) to pursue a certified match program to
    use local and state Healthy Start funding to draw down federal
  6  matching funds in the event that the federal government does
    not approve the pending Healthy Start waiver; requires that
  7  heath insurers and health maintenance organizations who are
    liable for Medicaid costs use the standard tape or electronic
  8  format or paper claims in the Medicare program format; creates
    the "Medicaid Estate Recovery Act"; deletes the requirement
  9  that one of the four provider service network demonstration
    projects be conducted in Orange County; enables the agency to
10  withhold payments based on reliable evidence that a provider
    is engaged in fraud or abuse of the Medicaid program or a
11  crime is being committed while rendering goods or services to
    Medicaid recipients; provides standards for the return of
12  withheld funds; requires the agency, when performing reviews
    of medical necessity for physician services, to use physicians
13  of the same specialty as the physician under review to the
    extent possible; requires the agency to give advance notice,
14  use valid and accepted statistical models, and refer claims it
    believes are overpayments for peer review when it is trying to
15  recover overpayments to physicians; requires a study of the
    agency's overpayment calculation methodology; and conforms
16  certain reporting requirements for HMOs and prepaid health
    clinics.
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