Senate Bill sb1150c1
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Florida Senate - 2002 CS for SB 1150
By the Committee on Health, Aging and Long-Term Care; and
Senator Saunders
317-1859-02
1 A bill to be entitled
2 An act relating to the recovery of Medicaid
3 overpayments; amending s. 16.59, F.S.;
4 specifying additional requirements for the
5 Medicaid Fraud Control Unit of the Department
6 of Legal Affairs and the Medicaid program
7 integrity program; amending s. 112.3187, F.S.;
8 extending whistle-blower protection to
9 employees of Medicaid providers reporting
10 Medicaid fraud or abuse; creating s. 408.831,
11 F.S.; allowing the Agency for Health Care
12 Administration to take action against a
13 licensee in certain circumstances; amending s.
14 409.907, F.S.; prescribing additional
15 requirements with respect to provider
16 enrollment; requiring that the Agency for
17 Health Care Administration deny a provider's
18 application under certain circumstances;
19 amending s. 409.908, F.S.; providing additional
20 requirements for cost-reporting; amending s.
21 409.910, F.S.; revising requirements for the
22 distribution of funds recovered from third
23 parties that are liable for making payments for
24 medical care furnished to Medicaid recipients
25 and in the case of recoveries of overpayments;
26 amending s. 409.913, F.S.; requiring that the
27 agency and Medicaid Fraud Control Unit annually
28 submit a report to the Legislature; defining
29 the term "complaint"; specifying additional
30 requirements for the Medicaid program integrity
31 program and the Medicaid Fraud Control Unit of
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1 the Department of Legal Affairs; requiring
2 imposition of sanctions or disincentives,
3 except under certain circumstances; providing
4 additional sanctions and disincentives;
5 providing additional grounds under which the
6 agency may terminate a provider's participation
7 in the Medicaid program; providing additional
8 requirements for administrative hearings;
9 providing additional grounds for withholding
10 payments to a provider; authorizing the agency
11 and the Medicaid Fraud Control Unit to review
12 certain records; requiring review by the
13 Attorney General of certain settlements;
14 requiring review by the Auditor General of
15 certain cost reports; amending s. 409.920,
16 F.S.; providing additional duties of the
17 Medicaid Fraud Control Unit; requiring
18 recommendations to the Legislature; providing
19 an effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Section 16.59, Florida Statutes, is amended
24 to read:
25 16.59 Medicaid fraud control.--There is created in the
26 Department of Legal Affairs the Medicaid Fraud Control Unit,
27 which may investigate all violations of s. 409.920 and any
28 criminal violations discovered during the course of those
29 investigations. The Medicaid Fraud Control Unit may refer any
30 criminal violation so uncovered to the appropriate prosecuting
31 authority. Offices of the Medicaid Fraud Control Unit and the
2
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1 offices of the Agency for Health Care Administration Medicaid
2 program integrity program shall, to the extent possible, be
3 collocated. The agency and the Department of Legal Affairs
4 shall conduct joint training and other joint activities
5 designed to increase communication and coordination in
6 recovering overpayments.
7 Section 2. Subsections (3), (5), and (7) of section
8 112.3187, Florida Statutes, are amended to read:
9 112.3187 Adverse action against employee for
10 disclosing information of specified nature prohibited;
11 employee remedy and relief.--
12 (3) DEFINITIONS.--As used in this act, unless
13 otherwise specified, the following words or terms shall have
14 the meanings indicated:
15 (a) "Agency" means any state, regional, county, local,
16 or municipal government entity, whether executive, judicial,
17 or legislative; any official, officer, department, division,
18 bureau, commission, authority, or political subdivision
19 therein; or any public school, community college, or state
20 university.
21 (b) "Employee" means a person who performs services
22 for, and under the control and direction of, or contracts
23 with, an agency or independent contractor for wages or other
24 remuneration.
25 (c) "Adverse personnel action" means the discharge,
26 suspension, transfer, or demotion of any employee or the
27 withholding of bonuses, the reduction in salary or benefits,
28 or any other adverse action taken against an employee within
29 the terms and conditions of employment by an agency or
30 independent contractor.
31
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1 (d) "Independent contractor" means a person, other
2 than an agency, engaged in any business and who enters into a
3 contract or provider agreement with an agency.
4 (e) "Gross mismanagement" means a continuous pattern
5 of managerial abuses, wrongful or arbitrary and capricious
6 actions, or fraudulent or criminal conduct which may have a
7 substantial adverse economic impact.
8 (5) NATURE OF INFORMATION DISCLOSED.--The information
9 disclosed under this section must include:
10 (a) Any violation or suspected violation of any
11 federal, state, or local law, rule, or regulation committed by
12 an employee or agent of an agency or independent contractor
13 which creates and presents a substantial and specific danger
14 to the public's health, safety, or welfare.
15 (b) Any act or suspected act of gross mismanagement,
16 malfeasance, misfeasance, gross waste of public funds,
17 suspected or actual Medicaid fraud or abuse, or gross neglect
18 of duty committed by an employee or agent of an agency or
19 independent contractor.
20 (7) EMPLOYEES AND PERSONS PROTECTED.--This section
21 protects employees and persons who disclose information on
22 their own initiative in a written and signed complaint; who
23 are requested to participate in an investigation, hearing, or
24 other inquiry conducted by any agency or federal government
25 entity; who refuse to participate in any adverse action
26 prohibited by this section; or who initiate a complaint
27 through the whistle-blower's hotline or the hotline of the
28 Medicaid FRaud Control Unit of the Department of Legal
29 Affairs; or employees who file any written complaint to their
30 supervisory officials or employees who submit a complaint to
31 the Chief Inspector General in the Executive Office of the
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1 Governor, to the employee designated as agency inspector
2 general under s. 112.3189(1), or to the Florida Commission on
3 Human Relations. The provisions of this section may not be
4 used by a person while he or she is under the care, custody,
5 or control of the state correctional system or, after release
6 from the care, custody, or control of the state correctional
7 system, with respect to circumstances that occurred during any
8 period of incarceration. No remedy or other protection under
9 ss. 112.3187-112.31895 applies to any person who has committed
10 or intentionally participated in committing the violation or
11 suspected violation for which protection under ss.
12 112.3187-112.31895 is being sought.
13 Section 3. Section 408.831, Florida Statutes, is
14 created to read:
15 408.831 Denial, suspension, revocation of a license,
16 registration, certificate or application.--
17 (1) In addition to any other remedies provided by law,
18 the agency may deny each application or suspend or revoke each
19 license, registration, or certificate of entities regulated or
20 licensed by it:
21 (a) If the applicant, licensee, registrant, or
22 certificateholder, or, in the case of a corporation,
23 partnership, or other business entity, if any officer,
24 director, agent, or managing employee of that business entity
25 or any affiliated person, partner, or shareholder having an
26 ownership interest equal to 5 percent or greater in that
27 business entity, has failed to pay all outstanding fines,
28 liens, or overpayments assessed by final order of the agency
29 or final order of the Centers for Medicare and Medicaid
30 Services unless a repayment plan is approved by the agency; or
31 (b) For failure to comply with any repayment plan.
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1 (2) This section provides standards of enforcement
2 applicable to all entities licensed or regulated by the Agency
3 for Health Care Administration. This section controls over any
4 conflicting provisions of chapters 39, 381, 383, 390, 391,
5 393, 394, 395, 400, 408, 468, 483, and 641 or rules adopted
6 pursuant to those chapters.
7 Section 4. Section 409.902, Florida Statutes, is
8 amended to read:
9 409.902 Designated single state agency; payment
10 requirements; program title.--The Agency for Health Care
11 Administration is designated as the single state agency
12 authorized to make payments for medical assistance and related
13 services under Title XIX of the Social Security Act. These
14 payments shall be made, subject to any limitations or
15 directions provided for in the General Appropriations Act,
16 only for services included in the program, shall be made only
17 on behalf of eligible individuals, and shall be made only to
18 qualified providers in accordance with federal requirements
19 for Title XIX of the Social Security Act and the provisions of
20 state law. This program of medical assistance is designated
21 the "Medicaid program." The Department of Children and Family
22 Services is responsible for Medicaid eligibility
23 determinations, including, but not limited to, policy, rules,
24 and the agreement with the Social Security Administration for
25 Medicaid eligibility determinations for Supplemental Security
26 Income recipients, as well as the actual determination of
27 eligibility. As a condition of Medicaid eligibility, the
28 Agency for Health Care Administration and the Department of
29 Children and Family Services shall ensure that each recipient
30 of Medicaid consents to the release of her or his medical
31 records to the Agency for Health Care Administration and the
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1 Medicaid Fraud Control Unit of the Department of Legal
2 Affairs.
3 Section 5. Subsections (7) and (9) of section 409.907,
4 Florida Statutes, as amended by section 6 of chapter 2001-377,
5 Laws of Florida, are amended to read:
6 409.907 Medicaid provider agreements.--The agency may
7 make payments for medical assistance and related services
8 rendered to Medicaid recipients only to an individual or
9 entity who has a provider agreement in effect with the agency,
10 who is performing services or supplying goods in accordance
11 with federal, state, and local law, and who agrees that no
12 person shall, on the grounds of handicap, race, color, or
13 national origin, or for any other reason, be subjected to
14 discrimination under any program or activity for which the
15 provider receives payment from the agency.
16 (7) The agency may require, as a condition of
17 participating in the Medicaid program and before entering into
18 the provider agreement, that the provider submit information,
19 in an initial and any required renewal applications,
20 concerning the professional, business, and personal background
21 of the provider and permit an onsite inspection of the
22 provider's service location by agency staff or other personnel
23 designated by the agency to perform this function. The agency
24 shall perform an onsite inspection, within 60 days after
25 receipt of a new provider's application, of the provider's
26 service location prior to making its first payment to the
27 provider for Medicaid services to determine the applicant's
28 ability to provide the services that the applicant is
29 proposing to provide for Medicaid reimbursement. The agency is
30 not required to perform an onsite inspection of a provider or
31 program that is licensed by the agency. As a continuing
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1 condition of participation in the Medicaid program, a provider
2 shall immediately notify the agency of any current or pending
3 bankruptcy filing. Before entering into the provider
4 agreement, or as a condition of continuing participation in
5 the Medicaid program, the agency may also require that
6 Medicaid providers reimbursed on a fee-for-services basis or
7 fee schedule basis which is not cost-based, post a surety bond
8 not to exceed $50,000 or the total amount billed by the
9 provider to the program during the current or most recent
10 calendar year, whichever is greater. For new providers, the
11 amount of the surety bond shall be determined by the agency
12 based on the provider's estimate of its first year's billing.
13 If the provider's billing during the first year exceeds the
14 bond amount, the agency may require the provider to acquire an
15 additional bond equal to the actual billing level of the
16 provider. A provider's bond shall not exceed $50,000 if a
17 physician or group of physicians licensed under chapter 458,
18 chapter 459, or chapter 460 has a 50 percent or greater
19 ownership interest in the provider or if the provider is an
20 assisted living facility licensed under part III of chapter
21 400. The bonds permitted by this section are in addition to
22 the bonds referenced in s. 400.179(4)(d). If the provider is a
23 corporation, partnership, association, or other entity, the
24 agency may require the provider to submit information
25 concerning the background of that entity and of any principal
26 of the entity, including any partner or shareholder having an
27 ownership interest in the entity equal to 5 percent or
28 greater, and any treating provider who participates in or
29 intends to participate in Medicaid through the entity. The
30 information must include:
31
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1 (a) Proof of holding a valid license or operating
2 certificate, as applicable, if required by the state or local
3 jurisdiction in which the provider is located or if required
4 by the Federal Government.
5 (b) Information concerning any prior violation, fine,
6 suspension, termination, or other administrative action taken
7 under the Medicaid laws, rules, or regulations of this state
8 or of any other state or the Federal Government; any prior
9 violation of the laws, rules, or regulations relating to the
10 Medicare program; any prior violation of the rules or
11 regulations of any other public or private insurer; and any
12 prior violation of the laws, rules, or regulations of any
13 regulatory body of this or any other state.
14 (c) Full and accurate disclosure of any financial or
15 ownership interest that the provider, or any principal,
16 partner, or major shareholder thereof, may hold in any other
17 Medicaid provider or health care related entity or any other
18 entity that is licensed by the state to provide health or
19 residential care and treatment to persons.
20 (d) If a group provider, identification of all members
21 of the group and attestation that all members of the group are
22 enrolled in or have applied to enroll in the Medicaid program.
23 (9) Upon receipt of a completed, signed, and dated
24 application, and completion of any necessary background
25 investigation and criminal history record check, the agency
26 must either:
27 (a) Enroll the applicant as a Medicaid provider no
28 earlier than the effective date of the approval of the
29 provider application. With respect to providers who primarily
30 provide emergency medical services transportation or emergency
31 services and care pursuant to s. 401.45 or s. 395.1041, upon
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1 approval of the provider application, the effective date of
2 approval is considered to be the date the agency receives the
3 provider application; or
4 (b) Deny the application if the agency finds that it
5 is in the best interest of the Medicaid program to do so. The
6 agency may consider the factors listed in subsection (10), as
7 well as any other factor that could affect the effective and
8 efficient administration of the program, including, but not
9 limited to, the applicant's demonstrated ability to provide
10 services, conduct business, and operate a financially viable
11 concern; the current availability of medical care, services,
12 or supplies to recipients, taking into account geographic
13 location and reasonable travel time; the number of providers
14 of the same type already enrolled in the same geographic area;
15 and the credentials, experience, success, and patient outcomes
16 of the provider for the services that it is making application
17 to provide in the Medicaid program. The agency shall deny the
18 application if the agency finds that a provider; any officer,
19 director, agent, managing employee, or affiliated person; or
20 any partner or shareholder having an ownership interest equal
21 to 5 percent or greater in the provider if the provider is a
22 corporation, partnership, or other business entity, has failed
23 to pay all outstanding fines or overpayments assessed by final
24 order of the agency or final order of the Centers for Medicare
25 and Medicaid Services, unless the provider agrees to a
26 repayment plan that includes withholding Medicaid
27 reimbursement until the amount due is paid in full.
28 Section 6. Section 409.908, Florida Statutes, is
29 amended to read:
30 409.908 Reimbursement of Medicaid providers.--Subject
31 to specific appropriations, the agency shall reimburse
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1 Medicaid providers, in accordance with state and federal law,
2 according to methodologies set forth in the rules of the
3 agency and in policy manuals and handbooks incorporated by
4 reference therein. These methodologies may include fee
5 schedules, reimbursement methods based on cost reporting,
6 negotiated fees, competitive bidding pursuant to s. 287.057,
7 and other mechanisms the agency considers efficient and
8 effective for purchasing services or goods on behalf of
9 recipients. If a provider is reimbursed based on cost
10 reporting and fails to submit cost reports at the time
11 specified by the agency, the agency shall withhold
12 reimbursement to the provider until a cost report is submitted
13 which is acceptable to the agency. Payment for Medicaid
14 compensable services made on behalf of Medicaid eligible
15 persons is subject to the availability of moneys and any
16 limitations or directions provided for in the General
17 Appropriations Act or chapter 216. Further, nothing in this
18 section shall be construed to prevent or limit the agency from
19 adjusting fees, reimbursement rates, lengths of stay, number
20 of visits, or number of services, or making any other
21 adjustments necessary to comply with the availability of
22 moneys and any limitations or directions provided for in the
23 General Appropriations Act, provided the adjustment is
24 consistent with legislative intent.
25 (1) Reimbursement to hospitals licensed under part I
26 of chapter 395 must be made prospectively or on the basis of
27 negotiation.
28 (a) Reimbursement for inpatient care is limited as
29 provided for in s. 409.905(5), except for:
30 1. The raising of rate reimbursement caps, excluding
31 rural hospitals.
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1 2. Recognition of the costs of graduate medical
2 education.
3 3. Other methodologies recognized in the General
4 Appropriations Act.
5 4. Hospital inpatient rates shall be reduced by 6
6 percent effective July 1, 2001, and restored effective April
7 1, 2002.
8
9 During the years funds are transferred from the Department of
10 Health, any reimbursement supported by such funds shall be
11 subject to certification by the Department of Health that the
12 hospital has complied with s. 381.0403. The agency is
13 authorized to receive funds from state entities, including,
14 but not limited to, the Department of Health, local
15 governments, and other local political subdivisions, for the
16 purpose of making special exception payments, including
17 federal matching funds, through the Medicaid inpatient
18 reimbursement methodologies. Funds received from state
19 entities or local governments for this purpose shall be
20 separately accounted for and shall not be commingled with
21 other state or local funds in any manner. The agency may
22 certify all local governmental funds used as state match under
23 Title XIX of the Social Security Act, to the extent that the
24 identified local health care provider that is otherwise
25 entitled to and is contracted to receive such local funds is
26 the benefactor under the state's Medicaid program as
27 determined under the General Appropriations Act and pursuant
28 to an agreement between the Agency for Health Care
29 Administration and the local governmental entity. The local
30 governmental entity shall use a certification form prescribed
31 by the agency. At a minimum, the certification form shall
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1 identify the amount being certified and describe the
2 relationship between the certifying local governmental entity
3 and the local health care provider. The agency shall prepare
4 an annual statement of impact which documents the specific
5 activities undertaken during the previous fiscal year pursuant
6 to this paragraph, to be submitted to the Legislature no later
7 than January 1, annually.
8 (b) Reimbursement for hospital outpatient care is
9 limited to $1,500 per state fiscal year per recipient, except
10 for:
11 1. Such care provided to a Medicaid recipient under
12 age 21, in which case the only limitation is medical
13 necessity.
14 2. Renal dialysis services.
15 3. Other exceptions made by the agency.
16
17 The agency is authorized to receive funds from state entities,
18 including, but not limited to, the Department of Health, the
19 Board of Regents, local governments, and other local political
20 subdivisions, for the purpose of making payments, including
21 federal matching funds, through the Medicaid outpatient
22 reimbursement methodologies. Funds received from state
23 entities and local governments for this purpose shall be
24 separately accounted for and shall not be commingled with
25 other state or local funds in any manner.
26 (c) Hospitals that provide services to a
27 disproportionate share of low-income Medicaid recipients, or
28 that participate in the regional perinatal intensive care
29 center program under chapter 383, or that participate in the
30 statutory teaching hospital disproportionate share program may
31 receive additional reimbursement. The total amount of payment
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1 for disproportionate share hospitals shall be fixed by the
2 General Appropriations Act. The computation of these payments
3 must be made in compliance with all federal regulations and
4 the methodologies described in ss. 409.911, 409.9112, and
5 409.9113.
6 (d) The agency is authorized to limit inflationary
7 increases for outpatient hospital services as directed by the
8 General Appropriations Act.
9 (2)(a)1. Reimbursement to nursing homes licensed under
10 part II of chapter 400 and state-owned-and-operated
11 intermediate care facilities for the developmentally disabled
12 licensed under chapter 393 must be made prospectively.
13 2. Unless otherwise limited or directed in the General
14 Appropriations Act, reimbursement to hospitals licensed under
15 part I of chapter 395 for the provision of swing-bed nursing
16 home services must be made on the basis of the average
17 statewide nursing home payment, and reimbursement to a
18 hospital licensed under part I of chapter 395 for the
19 provision of skilled nursing services must be made on the
20 basis of the average nursing home payment for those services
21 in the county in which the hospital is located. When a
22 hospital is located in a county that does not have any
23 community nursing homes, reimbursement must be determined by
24 averaging the nursing home payments, in counties that surround
25 the county in which the hospital is located. Reimbursement to
26 hospitals, including Medicaid payment of Medicare copayments,
27 for skilled nursing services shall be limited to 30 days,
28 unless a prior authorization has been obtained from the
29 agency. Medicaid reimbursement may be extended by the agency
30 beyond 30 days, and approval must be based upon verification
31 by the patient's physician that the patient requires
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1 short-term rehabilitative and recuperative services only, in
2 which case an extension of no more than 15 days may be
3 approved. Reimbursement to a hospital licensed under part I of
4 chapter 395 for the temporary provision of skilled nursing
5 services to nursing home residents who have been displaced as
6 the result of a natural disaster or other emergency may not
7 exceed the average county nursing home payment for those
8 services in the county in which the hospital is located and is
9 limited to the period of time which the agency considers
10 necessary for continued placement of the nursing home
11 residents in the hospital.
12 (b) Subject to any limitations or directions provided
13 for in the General Appropriations Act, the agency shall
14 establish and implement a Florida Title XIX Long-Term Care
15 Reimbursement Plan (Medicaid) for nursing home care in order
16 to provide care and services in conformance with the
17 applicable state and federal laws, rules, regulations, and
18 quality and safety standards and to ensure that individuals
19 eligible for medical assistance have reasonable geographic
20 access to such care.
21 1. Changes of ownership or of licensed operator do not
22 qualify for increases in reimbursement rates associated with
23 the change of ownership or of licensed operator. The agency
24 shall amend the Title XIX Long Term Care Reimbursement Plan to
25 provide that the initial nursing home reimbursement rates, for
26 the operating, patient care, and MAR components, associated
27 with related and unrelated party changes of ownership or
28 licensed operator filed on or after September 1, 2001, are
29 equivalent to the previous owner's reimbursement rate.
30 2. The agency shall amend the long-term care
31 reimbursement plan and cost reporting system to create direct
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1 care and indirect care subcomponents of the patient care
2 component of the per diem rate. These two subcomponents
3 together shall equal the patient care component of the per
4 diem rate. Separate cost-based ceilings shall be calculated
5 for each patient care subcomponent. The direct care
6 subcomponent of the per diem rate shall be limited by the
7 cost-based class ceiling, and the indirect care subcomponent
8 shall be limited by the lower of the cost-based class ceiling,
9 by the target rate class ceiling, or by the individual
10 provider target. The agency shall adjust the patient care
11 component effective January 1, 2002. The cost to adjust the
12 direct care subcomponent shall be net of the total funds
13 previously allocated for the case mix add-on. The agency shall
14 make the required changes to the nursing home cost reporting
15 forms to implement this requirement effective January 1, 2002.
16 3. The direct care subcomponent shall include salaries
17 and benefits of direct care staff providing nursing services
18 including registered nurses, licensed practical nurses, and
19 certified nursing assistants who deliver care directly to
20 residents in the nursing home facility. This excludes nursing
21 administration, MDS, and care plan coordinators, staff
22 development, and staffing coordinator.
23 4. All other patient care costs shall be included in
24 the indirect care cost subcomponent of the patient care per
25 diem rate. There shall be no costs directly or indirectly
26 allocated to the direct care subcomponent from a home office
27 or management company.
28 5. On July 1 of each year, the agency shall report to
29 the Legislature direct and indirect care costs, including
30 average direct and indirect care costs per resident per
31
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1 facility and direct care and indirect care salaries and
2 benefits per category of staff member per facility.
3 6. Under the plan, interim rate adjustments shall not
4 be granted to reflect increases in the cost of general or
5 professional liability insurance for nursing homes unless the
6 following criteria are met: have at least a 65 percent
7 Medicaid utilization in the most recent cost report submitted
8 to the agency, and the increase in general or professional
9 liability costs to the facility for the most recent policy
10 period affects the total Medicaid per diem by at least 5
11 percent. This rate adjustment shall not result in the per diem
12 exceeding the class ceiling. This provision shall be
13 implemented to the extent existing appropriations are
14 available.
15
16 It is the intent of the Legislature that the reimbursement
17 plan achieve the goal of providing access to health care for
18 nursing home residents who require large amounts of care while
19 encouraging diversion services as an alternative to nursing
20 home care for residents who can be served within the
21 community. The agency shall base the establishment of any
22 maximum rate of payment, whether overall or component, on the
23 available moneys as provided for in the General Appropriations
24 Act. The agency may base the maximum rate of payment on the
25 results of scientifically valid analysis and conclusions
26 derived from objective statistical data pertinent to the
27 particular maximum rate of payment.
28 (3) Subject to any limitations or directions provided
29 for in the General Appropriations Act, the following Medicaid
30 services and goods may be reimbursed on a fee-for-service
31 basis. For each allowable service or goods furnished in
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1 accordance with Medicaid rules, policy manuals, handbooks, and
2 state and federal law, the payment shall be the amount billed
3 by the provider, the provider's usual and customary charge, or
4 the maximum allowable fee established by the agency, whichever
5 amount is less, with the exception of those services or goods
6 for which the agency makes payment using a methodology based
7 on capitation rates, average costs, or negotiated fees.
8 (a) Advanced registered nurse practitioner services.
9 (b) Birth center services.
10 (c) Chiropractic services.
11 (d) Community mental health services.
12 (e) Dental services, including oral and maxillofacial
13 surgery.
14 (f) Durable medical equipment.
15 (g) Hearing services.
16 (h) Occupational therapy for Medicaid recipients under
17 age 21.
18 (i) Optometric services.
19 (j) Orthodontic services.
20 (k) Personal care for Medicaid recipients under age
21 21.
22 (l) Physical therapy for Medicaid recipients under age
23 21.
24 (m) Physician assistant services.
25 (n) Podiatric services.
26 (o) Portable X-ray services.
27 (p) Private-duty nursing for Medicaid recipients under
28 age 21.
29 (q) Registered nurse first assistant services.
30 (r) Respiratory therapy for Medicaid recipients under
31 age 21.
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1 (s) Speech therapy for Medicaid recipients under age
2 21.
3 (t) Visual services.
4 (4) Subject to any limitations or directions provided
5 for in the General Appropriations Act, alternative health
6 plans, health maintenance organizations, and prepaid health
7 plans shall be reimbursed a fixed, prepaid amount negotiated,
8 or competitively bid pursuant to s. 287.057, by the agency and
9 prospectively paid to the provider monthly for each Medicaid
10 recipient enrolled. The amount may not exceed the average
11 amount the agency determines it would have paid, based on
12 claims experience, for recipients in the same or similar
13 category of eligibility. The agency shall calculate
14 capitation rates on a regional basis and, beginning September
15 1, 1995, shall include age-band differentials in such
16 calculations. Effective July 1, 2001, the cost of exempting
17 statutory teaching hospitals, specialty hospitals, and
18 community hospital education program hospitals from
19 reimbursement ceilings and the cost of special Medicaid
20 payments shall not be included in premiums paid to health
21 maintenance organizations or prepaid health care plans. Each
22 rate semester, the agency shall calculate and publish a
23 Medicaid hospital rate schedule that does not reflect either
24 special Medicaid payments or the elimination of rate
25 reimbursement ceilings, to be used by hospitals and Medicaid
26 health maintenance organizations, in order to determine the
27 Medicaid rate referred to in ss. 409.912(16), 409.9128(5), and
28 641.513(6).
29 (5) An ambulatory surgical center shall be reimbursed
30 the lesser of the amount billed by the provider or the
31 Medicare-established allowable amount for the facility.
19
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1 (6) A provider of early and periodic screening,
2 diagnosis, and treatment services to Medicaid recipients who
3 are children under age 21 shall be reimbursed using an
4 all-inclusive rate stipulated in a fee schedule established by
5 the agency. A provider of the visual, dental, and hearing
6 components of such services shall be reimbursed the lesser of
7 the amount billed by the provider or the Medicaid maximum
8 allowable fee established by the agency.
9 (7) A provider of family planning services shall be
10 reimbursed the lesser of the amount billed by the provider or
11 an all-inclusive amount per type of visit for physicians and
12 advanced registered nurse practitioners, as established by the
13 agency in a fee schedule.
14 (8) A provider of home-based or community-based
15 services rendered pursuant to a federally approved waiver
16 shall be reimbursed based on an established or negotiated rate
17 for each service. These rates shall be established according
18 to an analysis of the expenditure history and prospective
19 budget developed by each contract provider participating in
20 the waiver program, or under any other methodology adopted by
21 the agency and approved by the Federal Government in
22 accordance with the waiver. Effective July 1, 1996, privately
23 owned and operated community-based residential facilities
24 which meet agency requirements and which formerly received
25 Medicaid reimbursement for the optional intermediate care
26 facility for the mentally retarded service may participate in
27 the developmental services waiver as part of a
28 home-and-community-based continuum of care for Medicaid
29 recipients who receive waiver services.
30 (9) A provider of home health care services or of
31 medical supplies and appliances shall be reimbursed on the
20
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1 basis of competitive bidding or for the lesser of the amount
2 billed by the provider or the agency's established maximum
3 allowable amount, except that, in the case of the rental of
4 durable medical equipment, the total rental payments may not
5 exceed the purchase price of the equipment over its expected
6 useful life or the agency's established maximum allowable
7 amount, whichever amount is less.
8 (10) A hospice shall be reimbursed through a
9 prospective system for each Medicaid hospice patient at
10 Medicaid rates using the methodology established for hospice
11 reimbursement pursuant to Title XVIII of the federal Social
12 Security Act.
13 (11) A provider of independent laboratory services
14 shall be reimbursed on the basis of competitive bidding or for
15 the least of the amount billed by the provider, the provider's
16 usual and customary charge, or the Medicaid maximum allowable
17 fee established by the agency.
18 (12)(a) A physician shall be reimbursed the lesser of
19 the amount billed by the provider or the Medicaid maximum
20 allowable fee established by the agency.
21 (b) The agency shall adopt a fee schedule, subject to
22 any limitations or directions provided for in the General
23 Appropriations Act, based on a resource-based relative value
24 scale for pricing Medicaid physician services. Under this fee
25 schedule, physicians shall be paid a dollar amount for each
26 service based on the average resources required to provide the
27 service, including, but not limited to, estimates of average
28 physician time and effort, practice expense, and the costs of
29 professional liability insurance. The fee schedule shall
30 provide increased reimbursement for preventive and primary
31 care services and lowered reimbursement for specialty services
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1 by using at least two conversion factors, one for cognitive
2 services and another for procedural services. The fee
3 schedule shall not increase total Medicaid physician
4 expenditures unless moneys are available, and shall be phased
5 in over a 2-year period beginning on July 1, 1994. The Agency
6 for Health Care Administration shall seek the advice of a
7 16-member advisory panel in formulating and adopting the fee
8 schedule. The panel shall consist of Medicaid physicians
9 licensed under chapters 458 and 459 and shall be composed of
10 50 percent primary care physicians and 50 percent specialty
11 care physicians.
12 (c) Notwithstanding paragraph (b), reimbursement fees
13 to physicians for providing total obstetrical services to
14 Medicaid recipients, which include prenatal, delivery, and
15 postpartum care, shall be at least $1,500 per delivery for a
16 pregnant woman with low medical risk and at least $2,000 per
17 delivery for a pregnant woman with high medical risk. However,
18 reimbursement to physicians working in Regional Perinatal
19 Intensive Care Centers designated pursuant to chapter 383, for
20 services to certain pregnant Medicaid recipients with a high
21 medical risk, may be made according to obstetrical care and
22 neonatal care groupings and rates established by the agency.
23 Nurse midwives licensed under part I of chapter 464 or
24 midwives licensed under chapter 467 shall be reimbursed at no
25 less than 80 percent of the low medical risk fee. The agency
26 shall by rule determine, for the purpose of this paragraph,
27 what constitutes a high or low medical risk pregnant woman and
28 shall not pay more based solely on the fact that a caesarean
29 section was performed, rather than a vaginal delivery. The
30 agency shall by rule determine a prorated payment for
31 obstetrical services in cases where only part of the total
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1 prenatal, delivery, or postpartum care was performed. The
2 Department of Health shall adopt rules for appropriate
3 insurance coverage for midwives licensed under chapter 467.
4 Prior to the issuance and renewal of an active license, or
5 reactivation of an inactive license for midwives licensed
6 under chapter 467, such licensees shall submit proof of
7 coverage with each application.
8 (13) Medicare premiums for persons eligible for both
9 Medicare and Medicaid coverage shall be paid at the rates
10 established by Title XVIII of the Social Security Act. For
11 Medicare services rendered to Medicaid-eligible persons,
12 Medicaid shall pay Medicare deductibles and coinsurance as
13 follows:
14 (a) Medicaid shall make no payment toward deductibles
15 and coinsurance for any service that is not covered by
16 Medicaid.
17 (b) Medicaid's financial obligation for deductibles
18 and coinsurance payments shall be based on Medicare allowable
19 fees, not on a provider's billed charges.
20 (c) Medicaid will pay no portion of Medicare
21 deductibles and coinsurance when payment that Medicare has
22 made for the service equals or exceeds what Medicaid would
23 have paid if it had been the sole payor. The combined payment
24 of Medicare and Medicaid shall not exceed the amount Medicaid
25 would have paid had it been the sole payor. The Legislature
26 finds that there has been confusion regarding the
27 reimbursement for services rendered to dually eligible
28 Medicare beneficiaries. Accordingly, the Legislature clarifies
29 that it has always been the intent of the Legislature before
30 and after 1991 that, in reimbursing in accordance with fees
31 established by Title XVIII for premiums, deductibles, and
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1 coinsurance for Medicare services rendered by physicians to
2 Medicaid eligible persons, physicians be reimbursed at the
3 lesser of the amount billed by the physician or the Medicaid
4 maximum allowable fee established by the Agency for Health
5 Care Administration, as is permitted by federal law. It has
6 never been the intent of the Legislature with regard to such
7 services rendered by physicians that Medicaid be required to
8 provide any payment for deductibles, coinsurance, or
9 copayments for Medicare cost sharing, or any expenses incurred
10 relating thereto, in excess of the payment amount provided for
11 under the State Medicaid plan for such service. This payment
12 methodology is applicable even in those situations in which
13 the payment for Medicare cost sharing for a qualified Medicare
14 beneficiary with respect to an item or service is reduced or
15 eliminated. This expression of the Legislature is in
16 clarification of existing law and shall apply to payment for,
17 and with respect to provider agreements with respect to, items
18 or services furnished on or after the effective date of this
19 act. This paragraph applies to payment by Medicaid for items
20 and services furnished before the effective date of this act
21 if such payment is the subject of a lawsuit that is based on
22 the provisions of this section, and that is pending as of, or
23 is initiated after, the effective date of this act.
24 (d) Notwithstanding paragraphs (a)-(c):
25 1. Medicaid payments for Nursing Home Medicare part A
26 coinsurance shall be the lesser of the Medicare coinsurance
27 amount or the Medicaid nursing home per diem rate.
28 2. Medicaid shall pay all deductibles and coinsurance
29 for Medicare-eligible recipients receiving freestanding end
30 stage renal dialysis center services.
31
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1 3. Medicaid payments for general hospital inpatient
2 services shall be limited to the Medicare deductible per spell
3 of illness. Medicaid shall make no payment toward coinsurance
4 for Medicare general hospital inpatient services.
5 4. Medicaid shall pay all deductibles and coinsurance
6 for Medicare emergency transportation services provided by
7 ambulances licensed pursuant to chapter 401.
8 (14) A provider of prescribed drugs shall be
9 reimbursed the least of the amount billed by the provider, the
10 provider's usual and customary charge, or the Medicaid maximum
11 allowable fee established by the agency, plus a dispensing
12 fee. The agency is directed to implement a variable dispensing
13 fee for payments for prescribed medicines while ensuring
14 continued access for Medicaid recipients. The variable
15 dispensing fee may be based upon, but not limited to, either
16 or both the volume of prescriptions dispensed by a specific
17 pharmacy provider and the volume of prescriptions dispensed to
18 an individual recipient. The agency is authorized to limit
19 reimbursement for prescribed medicine in order to comply with
20 any limitations or directions provided for in the General
21 Appropriations Act, which may include implementing a
22 prospective or concurrent utilization review program.
23 (15) A provider of primary care case management
24 services rendered pursuant to a federally approved waiver
25 shall be reimbursed by payment of a fixed, prepaid monthly sum
26 for each Medicaid recipient enrolled with the provider.
27 (16) A provider of rural health clinic services and
28 federally qualified health center services shall be reimbursed
29 a rate per visit based on total reasonable costs of the
30 clinic, as determined by the agency in accordance with federal
31 regulations.
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1 (17) A provider of targeted case management services
2 shall be reimbursed pursuant to an established fee, except
3 where the Federal Government requires a public provider be
4 reimbursed on the basis of average actual costs.
5 (18) Unless otherwise provided for in the General
6 Appropriations Act, a provider of transportation services
7 shall be reimbursed the lesser of the amount billed by the
8 provider or the Medicaid maximum allowable fee established by
9 the agency, except when the agency has entered into a direct
10 contract with the provider, or with a community transportation
11 coordinator, for the provision of an all-inclusive service, or
12 when services are provided pursuant to an agreement negotiated
13 between the agency and the provider. The agency, as provided
14 for in s. 427.0135, shall purchase transportation services
15 through the community coordinated transportation system, if
16 available, unless the agency determines a more cost-effective
17 method for Medicaid clients. Nothing in this subsection shall
18 be construed to limit or preclude the agency from contracting
19 for services using a prepaid capitation rate or from
20 establishing maximum fee schedules, individualized
21 reimbursement policies by provider type, negotiated fees,
22 prior authorization, competitive bidding, increased use of
23 mass transit, or any other mechanism that the agency considers
24 efficient and effective for the purchase of services on behalf
25 of Medicaid clients, including implementing a transportation
26 eligibility process. The agency shall not be required to
27 contract with any community transportation coordinator or
28 transportation operator that has been determined by the
29 agency, the Department of Legal Affairs Medicaid Fraud Control
30 Unit, or any other state or federal agency to have engaged in
31 any abusive or fraudulent billing activities. The agency is
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1 authorized to competitively procure transportation services or
2 make other changes necessary to secure approval of federal
3 waivers needed to permit federal financing of Medicaid
4 transportation services at the service matching rate rather
5 than the administrative matching rate.
6 (19) County health department services may be
7 reimbursed a rate per visit based on total reasonable costs of
8 the clinic, as determined by the agency in accordance with
9 federal regulations under the authority of 42 C.F.R. s.
10 431.615.
11 (20) A renal dialysis facility that provides dialysis
12 services under s. 409.906(9) must be reimbursed the lesser of
13 the amount billed by the provider, the provider's usual and
14 customary charge, or the maximum allowable fee established by
15 the agency, whichever amount is less.
16 (21) The agency shall reimburse school districts which
17 certify the state match pursuant to ss. 236.0812 and 409.9071
18 for the federal portion of the school district's allowable
19 costs to deliver the services, based on the reimbursement
20 schedule. The school district shall determine the costs for
21 delivering services as authorized in ss. 236.0812 and 409.9071
22 for which the state match will be certified. Reimbursement of
23 school-based providers is contingent on such providers being
24 enrolled as Medicaid providers and meeting the qualifications
25 contained in 42 C.F.R. s. 440.110, unless otherwise waived by
26 the federal Health Care Financing Administration. Speech
27 therapy providers who are certified through the Department of
28 Education pursuant to rule 6A-4.0176, Florida Administrative
29 Code, are eligible for reimbursement for services that are
30 provided on school premises. Any employee of the school
31 district who has been fingerprinted and has received a
27
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1 criminal background check in accordance with Department of
2 Education rules and guidelines shall be exempt from any agency
3 requirements relating to criminal background checks.
4 (22) The agency shall request and implement Medicaid
5 waivers from the federal Health Care Financing Administration
6 to advance and treat a portion of the Medicaid nursing home
7 per diem as capital for creating and operating a
8 risk-retention group for self-insurance purposes, consistent
9 with federal and state laws and rules.
10 Section 7. Paragraph (b) of subsection (7) of section
11 409.910, Florida Statutes, is amended to read:
12 409.910 Responsibility for payments on behalf of
13 Medicaid-eligible persons when other parties are liable.--
14 (7) The agency shall recover the full amount of all
15 medical assistance provided by Medicaid on behalf of the
16 recipient to the full extent of third-party benefits.
17 (b) Upon receipt of any recovery or other collection
18 pursuant to this section, s. 409.913 or s. 409.920 the agency
19 shall distribute the amount collected as follows:
20 1. To itself and to any county that has responsibility
21 for certain items of care and service as mandated in s.
22 409.915, amounts equal to a pro rata distribution of the
23 county's contribution and the state's respective Medicaid
24 expenditures an amount equal to the state Medicaid
25 expenditures for the recipient plus any incentive payment made
26 in accordance with paragraph (14)(a). However, if a county has
27 been billed for its participation but has not paid the amount
28 due, the agency shall offset that amount and notify the county
29 of the amount of the offset. If the county has divided its
30 financial responsibility between the county and a special
31 taxing district or authority as contemplated in s. 409.915(6),
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1 the county must proportionately divide any refund or offset in
2 accordance with the proration that it has established.
3 2. To the Federal Government, the federal share of the
4 state Medicaid expenditures minus any incentive payment made
5 in accordance with paragraph (14)(a) and federal law, and
6 minus any other amount permitted by federal law to be
7 deducted.
8 3. To the recipient, after deducting any known amounts
9 owed to the agency for any related medical assistance or to
10 health care providers, any remaining amount. This amount shall
11 be treated as income or resources in determining eligibility
12 for Medicaid.
13
14 The provisions of this subsection do not apply to any proceeds
15 received by the state, or any agency thereof, pursuant to a
16 final order, judgment, or settlement agreement, in any matter
17 in which the state asserts claims brought on its own behalf,
18 and not as a subrogee of a recipient, or under other theories
19 of liability. The provisions of this subsection do not apply
20 to any proceeds received by the state, or an agency thereof,
21 pursuant to a final order, judgment, or settlement agreement,
22 in any matter in which the state asserted both claims as a
23 subrogee and additional claims, except as to those sums
24 specifically identified in the final order, judgment, or
25 settlement agreement as reimbursements to the recipient as
26 expenditures for the named recipient on the subrogation claim.
27 Section 8. Section 409.913, Florida Statutes, as
28 amended by section 12 of chapter 2001-377, Laws of Florida, is
29 amended to read:
30 409.913 Oversight of the integrity of the Medicaid
31 program.--The agency shall operate a program to oversee the
29
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1 activities of Florida Medicaid recipients, and providers and
2 their representatives, to ensure that fraudulent and abusive
3 behavior and neglect of recipients occur to the minimum extent
4 possible, and to recover overpayments and impose sanctions as
5 appropriate. Beginning January 1, 2003, and each year
6 thereafter, the agency and the Medicaid Fraud Control Unit of
7 the Department of Legal Affairs shall submit a joint report to
8 the Legislature documenting the effectiveness of the state's
9 efforts to control Medicaid fraud and abuse and to recover
10 Medicaid overpayments during the previous fiscal year. The
11 report must describe the number of cases opened and
12 investigated each year; the sources of the cases opened; the
13 disposition of the cases closed each year; the amount of
14 overpayments alleged in preliminary and final audit letters;
15 the number and amount of fines or penalties imposed; any
16 reductions in overpayment amounts negotiated in settlement
17 agreements or by other means; the amount of final agency
18 determinations of overpayments; the amount deducted from
19 federal claiming as a result of overpayments; the amount of
20 overpayments recovered each year; the amount of cost of
21 investigation recovered each year; the average length of time
22 to collect from the time the case was opened until the
23 overpayment is paid in full; the amount determined as
24 uncollectible and the portion of the uncollectible amount
25 subsequently reclaimed from the Federal Government; the number
26 of providers, by type, that are terminated from participation
27 in the Medicaid program as a result of fraud and abuse; and
28 all costs associated with discovering and prosecuting cases of
29 Medicaid overpayments and making recoveries in such cases. The
30 report must also document actions taken to prevent
31 overpayments and the number of providers prevented from
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1 enrolling in or reenrolling in the Medicaid program as a
2 result of documented Medicaid fraud and abuse and must
3 recommend changes necessary to prevent or recover
4 overpayments. For the 2001-2002 fiscal year, the agency shall
5 prepare a report that contains as much of this information as
6 is available to it.
7 (1) For the purposes of this section, the term:
8 (a) "Abuse" means:
9 1. Provider practices that are inconsistent with
10 generally accepted business or medical practices and that
11 result in an unnecessary cost to the Medicaid program or in
12 reimbursement for goods or services that are not medically
13 necessary or that fail to meet professionally recognized
14 standards for health care.
15 2. Recipient practices that result in unnecessary cost
16 to the Medicaid program.
17 (b) "Complaint" means an allegation that fraud, abuse
18 or an overpayment has occurred.
19 (c)(b) "Fraud" means an intentional deception or
20 misrepresentation made by a person with the knowledge that the
21 deception results in unauthorized benefit to herself or
22 himself or another person. The term includes any act that
23 constitutes fraud under applicable federal or state law.
24 (d)(c) "Medical necessity" or "medically necessary"
25 means any goods or services necessary to palliate the effects
26 of a terminal condition, or to prevent, diagnose, correct,
27 cure, alleviate, or preclude deterioration of a condition that
28 threatens life, causes pain or suffering, or results in
29 illness or infirmity, which goods or services are provided in
30 accordance with generally accepted standards of medical
31 practice. For purposes of determining Medicaid reimbursement,
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1 the agency is the final arbiter of medical necessity.
2 Determinations of medical necessity must be made by a licensed
3 physician employed by or under contract with the agency and
4 must be based upon information available at the time the goods
5 or services are provided.
6 (e)(d) "Overpayment" includes any amount that is not
7 authorized to be paid by the Medicaid program whether paid as
8 a result of inaccurate or improper cost reporting, improper
9 claiming, unacceptable practices, fraud, abuse, or mistake.
10 (f)(e) "Person" means any natural person, corporation,
11 partnership, association, clinic, group, or other entity,
12 whether or not such person is enrolled in the Medicaid program
13 or is a provider of health care.
14 (2) The agency shall conduct, or cause to be conducted
15 by contract or otherwise, reviews, investigations, analyses,
16 audits, or any combination thereof, to determine possible
17 fraud, abuse, overpayment, or recipient neglect in the
18 Medicaid program and shall report the findings of any
19 overpayments in audit reports as appropriate.
20 (3) The agency may conduct, or may contract for,
21 prepayment review of provider claims to ensure cost-effective
22 purchasing, billing, and provision of care to Medicaid
23 recipients. Such prepayment reviews may be conducted as
24 determined appropriate by the agency, without any suspicion or
25 allegation of fraud, abuse, or neglect.
26 (4) Any suspected criminal violation identified by the
27 agency must be referred to the Medicaid Fraud Control Unit of
28 the Office of the Attorney General for investigation. The
29 agency and the Attorney General shall enter into a memorandum
30 of understanding, which must include, but need not be limited
31 to, a protocol for regularly sharing information and
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1 coordinating casework. The protocol must establish a
2 procedure for the referral by the agency of cases involving
3 suspected Medicaid fraud to the Medicaid Fraud Control Unit
4 for investigation, and the return to the agency of those cases
5 where investigation determines that administrative action by
6 the agency is appropriate. Offices of the Medicaid program
7 integrity program and the Medicaid Fraud Control Unit of the
8 Department of Legal Affairs, shall, to the extent possible, be
9 collocated. The agency and the Department of Legal Affairs
10 shall periodically conduct joint training and other joint
11 activities designed to increase communication and coordination
12 in recovering overpayments.
13 (5) A Medicaid provider is subject to having goods and
14 services that are paid for by the Medicaid program reviewed by
15 an appropriate peer-review organization designated by the
16 agency. The written findings of the applicable peer-review
17 organization are admissible in any court or administrative
18 proceeding as evidence of medical necessity or the lack
19 thereof.
20 (6) Any notice required to be given to a provider
21 under this section is presumed to be sufficient notice if sent
22 to the address last shown on the provider enrollment file. It
23 is the responsibility of the provider to furnish and keep the
24 agency informed of the provider's current address. United
25 States Postal Service proof of mailing or certified or
26 registered mailing of such notice to the provider at the
27 address shown on the provider enrollment file constitutes
28 sufficient proof of notice. Any notice required to be given to
29 the agency by this section must be sent to the agency at an
30 address designated by rule.
31
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1 (7) When presenting a claim for payment under the
2 Medicaid program, a provider has an affirmative duty to
3 supervise the provision of, and be responsible for, goods and
4 services claimed to have been provided, to supervise and be
5 responsible for preparation and submission of the claim, and
6 to present a claim that is true and accurate and that is for
7 goods and services that:
8 (a) Have actually been furnished to the recipient by
9 the provider prior to submitting the claim.
10 (b) Are Medicaid-covered goods or services that are
11 medically necessary.
12 (c) Are of a quality comparable to those furnished to
13 the general public by the provider's peers.
14 (d) Have not been billed in whole or in part to a
15 recipient or a recipient's responsible party, except for such
16 copayments, coinsurance, or deductibles as are authorized by
17 the agency.
18 (e) Are provided in accord with applicable provisions
19 of all Medicaid rules, regulations, handbooks, and policies
20 and in accordance with federal, state, and local law.
21 (f) Are documented by records made at the time the
22 goods or services were provided, demonstrating the medical
23 necessity for the goods or services rendered. Medicaid goods
24 or services are excessive or not medically necessary unless
25 both the medical basis and the specific need for them are
26 fully and properly documented in the recipient's medical
27 record.
28 (8) A Medicaid provider shall retain medical,
29 professional, financial, and business records pertaining to
30 services and goods furnished to a Medicaid recipient and
31 billed to Medicaid for a period of 5 years after the date of
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1 furnishing such services or goods. The agency may investigate,
2 review, or analyze such records, which must be made available
3 during normal business hours. However, 24-hour notice must be
4 provided if patient treatment would be disrupted. The provider
5 is responsible for furnishing to the agency, and keeping the
6 agency informed of the location of, the provider's
7 Medicaid-related records. The authority of the agency to
8 obtain Medicaid-related records from a provider is neither
9 curtailed nor limited during a period of litigation between
10 the agency and the provider.
11 (9) Payments for the services of billing agents or
12 persons participating in the preparation of a Medicaid claim
13 shall not be based on amounts for which they bill nor based on
14 the amount a provider receives from the Medicaid program.
15 (10) The agency may require repayment for
16 inappropriate, medically unnecessary, or excessive goods or
17 services from the person furnishing them, the person under
18 whose supervision they were furnished, or the person causing
19 them to be furnished.
20 (11) The complaint and all information obtained
21 pursuant to an investigation of a Medicaid provider, or the
22 authorized representative or agent of a provider, relating to
23 an allegation of fraud, abuse, or neglect are confidential and
24 exempt from the provisions of s. 119.07(1):
25 (a) Until the agency takes final agency action with
26 respect to the provider and requires repayment of any
27 overpayment, or imposes an administrative sanction;
28 (b) Until the Attorney General refers the case for
29 criminal prosecution;
30 (c) Until 10 days after the complaint is determined
31 without merit; or
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1 (d) At all times if the complaint or information is
2 otherwise protected by law.
3 (12) The agency may terminate participation of a
4 Medicaid provider in the Medicaid program and may seek civil
5 remedies or impose other administrative sanctions against a
6 Medicaid provider, if the provider has been:
7 (a) Convicted of a criminal offense related to the
8 delivery of any health care goods or services, including the
9 performance of management or administrative functions relating
10 to the delivery of health care goods or services;
11 (b) Convicted of a criminal offense under federal law
12 or the law of any state relating to the practice of the
13 provider's profession; or
14 (c) Found by a court of competent jurisdiction to have
15 neglected or physically abused a patient in connection with
16 the delivery of health care goods or services.
17 (13) If the provider has been suspended or terminated
18 from participation in the Medicaid program or the Medicare
19 program by the Federal Government or any state, the agency
20 must immediately suspend or terminate, as appropriate, the
21 provider's participation in the Florida Medicaid program for a
22 period no less than that imposed by the Federal Government or
23 any other state, and may not enroll such provider in the
24 Florida Medicaid program while such foreign suspension or
25 termination remains in effect. This sanction is in addition
26 to all other remedies provided by law.
27 (14) The agency may seek any remedy provided by law,
28 including, but not limited to, the remedies provided in
29 subsections (12) and (15) and s. 812.035, if:
30
31
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1 (a) The provider's license has not been renewed, or
2 has been revoked, suspended, or terminated, for cause, by the
3 licensing agency of any state;
4 (b) The provider has failed to make available or has
5 refused access to Medicaid-related records to an auditor,
6 investigator, or other authorized employee or agent of the
7 agency, the Attorney General, a state attorney, or the Federal
8 Government;
9 (c) The provider has not furnished or has failed to
10 make available such Medicaid-related records as the agency has
11 found necessary to determine whether Medicaid payments are or
12 were due and the amounts thereof;
13 (d) The provider has failed to maintain medical
14 records made at the time of service, or prior to service if
15 prior authorization is required, demonstrating the necessity
16 and appropriateness of the goods or services rendered;
17 (e) The provider is not in compliance with provisions
18 of Medicaid provider publications that have been adopted by
19 reference as rules in the Florida Administrative Code; with
20 provisions of state or federal laws, rules, or regulations;
21 with provisions of the provider agreement between the agency
22 and the provider; or with certifications found on claim forms
23 or on transmittal forms for electronically submitted claims
24 that are submitted by the provider or authorized
25 representative, as such provisions apply to the Medicaid
26 program;
27 (f) The provider or person who ordered or prescribed
28 the care, services, or supplies has furnished, or ordered the
29 furnishing of, goods or services to a recipient which are
30 inappropriate, unnecessary, excessive, or harmful to the
31 recipient or are of inferior quality;
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1 (g) The provider has demonstrated a pattern of failure
2 to provide goods or services that are medically necessary;
3 (h) The provider or an authorized representative of
4 the provider, or a person who ordered or prescribed the goods
5 or services, has submitted or caused to be submitted false or
6 a pattern of erroneous Medicaid claims that have resulted in
7 overpayments to a provider or that exceed those to which the
8 provider was entitled under the Medicaid program;
9 (i) The provider or an authorized representative of
10 the provider, or a person who has ordered or prescribed the
11 goods or services, has submitted or caused to be submitted a
12 Medicaid provider enrollment application, a request for prior
13 authorization for Medicaid services, a drug exception request,
14 or a Medicaid cost report that contains materially false or
15 incorrect information;
16 (j) The provider or an authorized representative of
17 the provider has collected from or billed a recipient or a
18 recipient's responsible party improperly for amounts that
19 should not have been so collected or billed by reason of the
20 provider's billing the Medicaid program for the same service;
21 (k) The provider or an authorized representative of
22 the provider has included in a cost report costs that are not
23 allowable under a Florida Title XIX reimbursement plan, after
24 the provider or authorized representative had been advised in
25 an audit exit conference or audit report that the costs were
26 not allowable;
27 (l) The provider is charged by information or
28 indictment with fraudulent billing practices. The sanction
29 applied for this reason is limited to suspension of the
30 provider's participation in the Medicaid program for the
31
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1 duration of the indictment unless the provider is found guilty
2 pursuant to the information or indictment;
3 (m) The provider or a person who has ordered, or
4 prescribed the goods or services is found liable for negligent
5 practice resulting in death or injury to the provider's
6 patient;
7 (n) The provider fails to demonstrate that it had
8 available during a specific audit or review period sufficient
9 quantities of goods, or sufficient time in the case of
10 services, to support the provider's billings to the Medicaid
11 program;
12 (o) The provider has failed to comply with the notice
13 and reporting requirements of s. 409.907; or
14 (p) The agency has received reliable information of
15 patient abuse or neglect or of any act prohibited by s.
16 409.920;.
17 (q) The provider has failed to comply with an
18 agreed-upon repayment schedule; or
19 (r) The provider has failed to timely file such
20 Medicaid cost reports as the agency considers necessary to set
21 or adjust payment rates.
22 (15) The agency shall may impose any of the following
23 sanctions or disincentives on a provider or a person for any
24 of the acts described in subsection (14):
25 (a) Suspension for a specific period of time of not
26 more than 1 year.
27 (b) Termination for a specific period of time of from
28 more than 1 year to 20 years.
29 (c) Imposition of a fine of up to $5,000 for each
30 violation. Each day that an ongoing violation continues, such
31 as refusing to furnish Medicaid-related records or refusing
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1 access to records, is considered, for the purposes of this
2 section, to be a separate violation. Each instance of
3 improper billing of a Medicaid recipient; each instance of
4 including an unallowable cost on a hospital or nursing home
5 Medicaid cost report after the provider or authorized
6 representative has been advised in an audit exit conference or
7 previous audit report of the cost unallowability; each
8 instance of furnishing a Medicaid recipient goods or
9 professional services that are inappropriate or of inferior
10 quality as determined by competent peer judgment; each
11 instance of knowingly submitting a materially false or
12 erroneous Medicaid provider enrollment application, request
13 for prior authorization for Medicaid services, drug exception
14 request, or cost report; each instance of inappropriate
15 prescribing of drugs for a Medicaid recipient as determined by
16 competent peer judgment; and each false or erroneous Medicaid
17 claim leading to an overpayment to a provider is considered,
18 for the purposes of this section, to be a separate violation.
19 (d) Immediate suspension, if the agency has received
20 information of patient abuse or neglect or of any act
21 prohibited by s. 409.920. Upon suspension, the agency must
22 issue an immediate final order under s. 120.569(2)(n).
23 (e) A fine, not to exceed $10,000, for a violation of
24 paragraph (14)(i).
25 (f) Imposition of liens against provider assets,
26 including, but not limited to, financial assets and real
27 property, not to exceed the amount of fines or recoveries
28 sought, upon entry of an order determining that such moneys
29 are due or recoverable.
30 (g) Prepayment reviews of claims for a specified
31 period of time.
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1 (h) Comprehensive follow-up reviews of providers every
2 6 months to ensure that they are billing Medicaid correctly.
3 (i) Corrective-action plans that would remain in
4 effect for providers for up to 3 years and that would be
5 monitored by the agency every 6 months while in effect.
6 (j)(g) Other remedies as permitted by law to effect
7 the recovery of a fine or overpayment.
8
9 The Secretary of Health Care Administration may make a
10 determination that imposition of a sanction or disincentive is
11 not in the best interest of the Medicaid program, in which
12 case a sanction or disincentive shall not be imposed.
13 (16) In determining the appropriate administrative
14 sanction to be applied, or the duration of any suspension or
15 termination, the agency shall consider:
16 (a) The seriousness and extent of the violation or
17 violations.
18 (b) Any prior history of violations by the provider
19 relating to the delivery of health care programs which
20 resulted in either a criminal conviction or in administrative
21 sanction or penalty.
22 (c) Evidence of continued violation within the
23 provider's management control of Medicaid statutes, rules,
24 regulations, or policies after written notification to the
25 provider of improper practice or instance of violation.
26 (d) The effect, if any, on the quality of medical care
27 provided to Medicaid recipients as a result of the acts of the
28 provider.
29 (e) Any action by a licensing agency respecting the
30 provider in any state in which the provider operates or has
31 operated.
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1 (f) The apparent impact on access by recipients to
2 Medicaid services if the provider is suspended or terminated,
3 in the best judgment of the agency.
4
5 The agency shall document the basis for all sanctioning
6 actions and recommendations.
7 (17) The agency may take action to sanction, suspend,
8 or terminate a particular provider working for a group
9 provider, and may suspend or terminate Medicaid participation
10 at a specific location, rather than or in addition to taking
11 action against an entire group.
12 (18) The agency shall establish a process for
13 conducting followup reviews of a sampling of providers who
14 have a history of overpayment under the Medicaid program.
15 This process must consider the magnitude of previous fraud or
16 abuse and the potential effect of continued fraud or abuse on
17 Medicaid costs.
18 (19) In making a determination of overpayment to a
19 provider, the agency must use accepted and valid auditing,
20 accounting, analytical, statistical, or peer-review methods,
21 or combinations thereof. Appropriate statistical methods may
22 include, but are not limited to, sampling and extension to the
23 population, parametric and nonparametric statistics, tests of
24 hypotheses, and other generally accepted statistical methods.
25 Appropriate analytical methods may include, but are not
26 limited to, reviews to determine variances between the
27 quantities of products that a provider had on hand and
28 available to be purveyed to Medicaid recipients during the
29 review period and the quantities of the same products paid for
30 by the Medicaid program for the same period, taking into
31 appropriate consideration sales of the same products to
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1 non-Medicaid customers during the same period. In meeting its
2 burden of proof in any administrative or court proceeding, the
3 agency may introduce the results of such statistical methods
4 as evidence of overpayment.
5 (20) When making a determination that an overpayment
6 has occurred, the agency shall prepare and issue an audit
7 report to the provider showing the calculation of
8 overpayments.
9 (21) The audit report, supported by agency work
10 papers, showing an overpayment to a provider constitutes
11 evidence of the overpayment. A provider may not present or
12 elicit testimony, either on direct examination or
13 cross-examination in any court or administrative proceeding,
14 regarding the purchase or acquisition by any means of drugs,
15 goods, or supplies; sales or divestment by any means of drugs,
16 goods, or supplies; or inventory of drugs, goods, or supplies,
17 unless such acquisition, sales, divestment, or inventory is
18 documented by written invoices, written inventory records, or
19 other competent written documentary evidence maintained in the
20 normal course of the provider's business. Notwithstanding the
21 applicable rules of discovery, all documentation that will be
22 offered as evidence at an administrative hearing on a Medicaid
23 overpayment must be exchanged by all parties at least 14 days
24 before the administrative hearing or must be excluded from
25 consideration.
26 (22)(a) In an audit or investigation of a violation
27 committed by a provider which is conducted pursuant to this
28 section, the agency is entitled to recover all investigative,
29 legal, and expert witness costs if the agency's findings were
30 not contested by the provider or, if contested, the agency
31 ultimately prevailed.
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1 (b) The agency has the burden of documenting the
2 costs, which include salaries and employee benefits and
3 out-of-pocket expenses. The amount of costs that may be
4 recovered must be reasonable in relation to the seriousness of
5 the violation and must be set taking into consideration the
6 financial resources, earning ability, and needs of the
7 provider, who has the burden of demonstrating such factors.
8 (c) The provider may pay the costs over a period to be
9 determined by the agency if the agency determines that an
10 extreme hardship would result to the provider from immediate
11 full payment. Any default in payment of costs may be
12 collected by any means authorized by law.
13 (23) If the agency imposes an administrative sanction
14 under this section upon any provider or other person who is
15 regulated by another state entity, the agency shall notify
16 that other entity of the imposition of the sanction. Such
17 notification must include the provider's or person's name and
18 license number and the specific reasons for sanction.
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, willful
23 misrepresentation, or abuse under the Medicaid program, or a
24 crime committed while rendering goods or services to Medicaid
25 recipients, pending completion of legal proceedings. If it is
26 determined that fraud, willful misrepresentation, abuse, or a
27 crime did not occur, the payments withheld must be paid to the
28 provider within 14 days after such determination with interest
29 at the rate of 10 percent a year. Any money withheld in
30 accordance with this paragraph shall be placed in a suspended
31
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1 account, readily accessible to the agency, so that any payment
2 ultimately due the provider shall be made within 14 days.
3 (b) Overpayments owed to the agency bear interest at
4 the rate of 10 percent per year from the date of determination
5 of the overpayment by the agency, and payment arrangements
6 must be made at the conclusion of legal proceedings. A
7 provider who does not enter into or adhere to an agreed-upon
8 repayment schedule may be terminated by the agency for
9 nonpayment or partial payment.
10 (c) The agency, upon entry of a final agency order, a
11 judgment or order of a court of competent jurisdiction, or a
12 stipulation or settlement, may collect the moneys owed by all
13 means allowable by law, including, but not limited to,
14 notifying any fiscal intermediary of Medicare benefits that
15 the state has a superior right of payment. Upon receipt of
16 such written notification, the Medicare fiscal intermediary
17 shall remit to the state the sum claimed.
18 (25) The agency may impose administrative sanctions
19 against a Medicaid recipient, or the agency may seek any other
20 remedy provided by law, including, but not limited to, the
21 remedies provided in s. 812.035, if the agency finds that a
22 recipient has engaged in solicitation in violation of s.
23 409.920 or that the recipient has otherwise abused the
24 Medicaid program.
25 (26) When the Agency for Health Care Administration
26 has made a probable cause determination and alleged that an
27 overpayment to a Medicaid provider has occurred, the agency,
28 after notice to the provider, may:
29 (a) Withhold, and continue to withhold during the
30 pendency of an administrative hearing pursuant to chapter 120,
31 any medical assistance reimbursement payments until such time
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1 as the overpayment is recovered, unless within 30 days after
2 receiving notice thereof the provider:
3 1. Makes repayment in full; or
4 2. Establishes a repayment plan that is satisfactory
5 to the Agency for Health Care Administration.
6 (b) Withhold, and continue to withhold during the
7 pendency of an administrative hearing pursuant to chapter 120,
8 medical assistance reimbursement payments if the terms of a
9 repayment plan are not adhered to by the provider.
10
11 If a provider requests an administrative hearing pursuant to
12 chapter 120, such hearing must be conducted within 90 days
13 following receipt by the provider of the final audit report,
14 absent exceptionally good cause shown as determined by the
15 administrative law judge or hearing officer. Upon issuance of
16 a final order, the balance outstanding of the amount
17 determined to constitute the overpayment shall become due. Any
18 withholding of payments by the Agency for Health Care
19 Administration pursuant to this section shall be limited so
20 that the monthly medical assistance payment is not reduced by
21 more than 10 percent.
22 (27) Venue for all Medicaid program integrity
23 overpayment cases shall lie in Leon County, at the discretion
24 of the agency.
25 (28) Notwithstanding other provisions of law, the
26 agency and the Medicaid Fraud Control Unit of the Department
27 of Legal Affairs may review a provider's Medicaid-related
28 records in order to determine the total output of a provider's
29 practice to reconcile quantities of goods or services billed
30 to Medicaid against quantities of goods or services used in
31 the provider's total practice.
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1 (29) The agency may terminate a provider's
2 participation in the Medicaid program if the provider fails to
3 reimburse an overpayment that has been determined by final
4 order within 35 days after the date of the final order, unless
5 the provider and the agency have entered into a repayment
6 agreement. If the final order is overturned on appeal, the
7 provider shall be reinstated.
8 (30) If a provider requests an administrative hearing
9 pursuant to chapter 120, such hearing must be conducted within
10 90 days following assignment of an administrative law judge,
11 absent exceptionally good cause shown as determined by the
12 administrative law judge or hearing officer. Upon issuance of
13 a final order, the outstanding balance of the amount
14 determined to constitute the overpayment shall become due. If
15 a provider fails to make payments in full, fails to enter into
16 a satisfactory repayment plan, or fails to comply with the
17 terms of a repayment plan or settlement agreement, the agency
18 may withhold medical-assistance-reimbursement payments until
19 the amount due is paid in full.
20 (31) Duly authorized agents and employees of the
21 agency and the Medicaid Fraud Control Unit of the Department
22 of Legal Affairs shall have the power to inspect, at all
23 reasonable hours and upon proper notice, the facility,
24 inventory, and records of any pharmacy, wholesale
25 establishment, or manufacturer, or any other place in the
26 state in which drugs and medical supplies are manufactured,
27 packed, packaged, made, stored, sold, or kept for sale, for
28 the purpose of verifying the amount of drugs and medical
29 supplies ordered, delivered, or purchased by a provider.
30
31
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1 (32) The agency shall request that the Attorney
2 General review any settlement of an overpayment in which the
3 agency reduces the amount due to the state by $10,000 or more.
4 (33) The agency shall request that the Auditor General
5 review any provider rate adjustment not supported by a cost
6 report or with respect to which there are disagreements
7 concerning the application of accounting interpretations and
8 the financial benefit to the provider exceeds $10,000.
9 Section 9. Subsections (7) and (8) of section 409.920,
10 Florida Statutes, are amended to read:
11 409.920 Medicaid provider fraud.--
12 (7) The Attorney General shall conduct a statewide
13 program of Medicaid fraud control. To accomplish this purpose,
14 the Attorney General shall:
15 (a) Investigate the possible criminal violation of any
16 applicable state law pertaining to fraud in the administration
17 of the Medicaid program, in the provision of medical
18 assistance, or in the activities of providers of health care
19 under the Medicaid program.
20 (b) Investigate the alleged abuse or neglect of
21 patients in health care facilities receiving payments under
22 the Medicaid program, in coordination with the agency.
23 (c) Investigate the alleged misappropriation of
24 patients' private funds in health care facilities receiving
25 payments under the Medicaid program.
26 (d) Refer to the Office of Statewide Prosecution or
27 the appropriate state attorney all violations indicating a
28 substantial potential for criminal prosecution.
29 (e) Refer to the agency all suspected abusive
30 activities not of a criminal nature.
31
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1 (f) Refer to the agency for collection each instance
2 of overpayment to a provider of health care under the Medicaid
3 program which is discovered during the course of an
4 investigation.
5 (e)(g) Safeguard the privacy rights of all individuals
6 and provide safeguards to prevent the use of patient medical
7 records for any reason beyond the scope of a specific
8 investigation for fraud or abuse, or both, without the
9 patient's written consent.
10 (f) Publicize to state employees and the public the
11 ability of persons to bring suit under the provisions of the
12 Florida False Claims Act and the potential for the persons
13 bring a civil action under the Florida False Claims Act to
14 obtain a monetary award.
15 (8) In carrying out the duties and responsibilities
16 under this section subsection, the Attorney General may:
17 (a) Enter upon the premises of any health care
18 provider, excluding a physician, participating in the Medicaid
19 program to examine all accounts and records that may, in any
20 manner, be relevant in determining the existence of fraud in
21 the Medicaid program, to investigate alleged abuse or neglect
22 of patients, or to investigate alleged misappropriation of
23 patients' private funds. A participating physician is required
24 to make available any accounts or records that may, in any
25 manner, be relevant in determining the existence of fraud in
26 the Medicaid program. The accounts or records of a
27 non-Medicaid patient may not be reviewed by, or turned over
28 to, the Attorney General without the patient's written
29 consent.
30 (b) Subpoena witnesses or materials, including medical
31 records relating to Medicaid recipients, within or outside the
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1 state and, through any duly designated employee, administer
2 oaths and affirmations and collect evidence for possible use
3 in either civil or criminal judicial proceedings.
4 (c) Request and receive the assistance of any state
5 attorney or law enforcement agency in the investigation and
6 prosecution of any violation of this section.
7 (d) Seek any civil remedy provided by law, including,
8 but not limited to, the remedies provided in ss.
9 68.081-68.092, s. 812.035, and this chapter.
10 (e) Refer to the agency for collection each instance
11 of overpayment to a provider of health care under the Medicaid
12 program which is discovered during the course of an
13 investigation.
14 (f) Refer to the agency suspected abusive activities
15 not of a criminal nature.
16 Section 10. By January 1, 2003, the Agency for Health
17 Care Administration shall make recommendations to the
18 Legislature as to limits in the amount of home office
19 management and administrative fees which should be allowable
20 for reimbursement for providers whose rates are set on a
21 cost-reimbursement basis.
22 Section 11. This act shall take effect upon becoming a
23 law.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1150
3
4 The Committee Substitute for Senate Bill 1150:
5 * requires collocation of offices, if possible, and
increased coordination between the offices of the
6 Medicaid program integrity program in the Agency for
Health Care Administration (AHCA or agency) and the
7 Medicaid Fraud Control Unit (MFCU) of the Department of
Legal Affairs;
8
* provides whistleblower protection to employees of
9 Medicaid providers and state agencies who report
Medicaid fraud and abuse;
10
* increases the ability of AHCA and MFCU to access records
11 and inspect providers, manufacturers, and wholesalers to
detect, investigate and prosecute overpayments;
12
* grants additional authority to AHCA to refuse to issue,
13 suspend, or revoke licenses, registrations,
certificates, or provider agreements of, and withhold
14 payments to, individuals and entities which have not
repaid, or made arrangements to repay, Medicaid
15 overpayments;
16 * modifies Medicaid provider application and contracting
standards to require onsite visits and determinations of
17 a provider's ability to render services;
18 * requires that the effective date of an approved
application for providers who primarily provide
19 emergency medical services transportation or emergency
services, be the date the agency receives the provider
20 application;
21 * grants AHCA the ability to withhold payments to
providers who fail to file or file erroneous cost
22 reports;
23 * adds a requirement for distribution of Medicaid
third-party liability recoveries and collections, and
24 recoveries of overpayments to counties which are liable
for making payments for medical care;
25
* requires additional reporting by AHCA and the MFCU of
26 detection, investigation and settlement activities to
increase accountability to the Legislature;
27
* requires AHCA to impose sanctions and disincentives in
28 the event of overpayments, unless not in the best
interests of the program;
29
* requires review by the Attorney General and Auditor
30 General of certain AHCA decisions in settlements and
provider rate adjustments; and
31
* grants the Attorney General additional flexibility and
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1 duties in bringing suit under the Florida False Claims
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