Senate Bill sb2876

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    Florida Senate - 2004                                  SB 2876

    By Senator Saunders





    37-1161A-04

  1                      A bill to be entitled

  2         An act relating to Medicaid prescription fraud;

  3         amending s. 16.56, F.S.; adding criminal

  4         violations of s. 409.920 or s. 409.9201, F.S.,

  5         to the list of specified crimes within the

  6         jurisdiction of the Office of Statewide

  7         Prosecution; amending s. 409.912, F.S.; giving

  8         the Agency for Health Care Administration the

  9         authority to require a confirmation or second

10         physician's opinion of the correct diagnosis

11         before authorizing payment for medical

12         treatment; authorizing the Agency for Health

13         Care Administration to impose mandatory

14         enrollment in drug-therapy-management or

15         disease-management programs for certain

16         categories of recipients; allowing termination

17         of certain practitioners from the Medicaid

18         program; providing that Medicaid recipients may

19         be mandated to participate in a provider

20         lock-in program; amending s. 409.913, F.S.;

21         providing specified conditions for providers to

22         meet in order to submit claims to the Medicaid

23         program; providing that claims may be denied if

24         not properly submitted; providing that the

25         agency may seek any remedy under law if a

26         provider submits specified false or erroneous

27         claims; providing that suspension or

28         termination precludes participation in the

29         Medicaid program; providing that the agency is

30         required to report administrative sanctions to

31         licensing authorities for certain violations;

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    Florida Senate - 2004                                  SB 2876
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 1         providing that the agency may withhold payment

 2         to a provider under certain circumstances;

 3         providing that the agency shall deny payments

 4         to terminated or suspended providers;

 5         authorizing the agency to adopt rules;

 6         providing for limiting, restricting, or

 7         suspending Medicaid eligibility of Medicaid

 8         recipients convicted of certain crimes or

 9         offenses; authorizing the agency head or

10         designee to limit, restrict, or suspend

11         Medicaid eligibility for a period not to exceed

12         1 year if a recipient is convicted of a federal

13         health care crime; authorizing the Agency for

14         Health Care Administration to limit the number

15         of certain types of prescription claims

16         submitted by pharmacy providers; requiring the

17         agency to limit the allowable amount of certain

18         types of prescriptions under specified

19         circumstances; amending s. 409.9131, F.S.;

20         requiring an additional statement on Medicaid

21         cost reports certifying that Medicaid providers

22         are familiar with the laws and regulations

23         regarding the provision of health care services

24         under the Medicaid program; amending s.

25         409.920, F.S.; making it unlawful to knowingly

26         use or endeavor to use a Medicaid provider's or

27         a Medicaid recipient's identification number or

28         cause to be made, or aid and abet in the making

29         of, a claim for items or services that are not

30         authorized to be reimbursed under the Medicaid

31         program; defining the term "paid for"; creating

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    Florida Senate - 2004                                  SB 2876
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 1         s. 409.9201, F.S.; providing definitions;

 2         providing that a person who knowingly sells or

 3         attempts to sell legend drugs obtained through

 4         the Medicaid program commits a felony;

 5         providing that a person who knowingly purchases

 6         or attempts to purchase legend drugs obtained

 7         through the Medicaid program and intended for

 8         the use of another commits a felony; providing

 9         that a person who knowingly makes or conspires

10         to make false representations for the purpose

11         of obtaining goods or services from the

12         Medicaid program commits a felony; providing

13         specified criminal penalties depending on the

14         value of the legend drugs or goods or services

15         obtained from the Medicaid program; amending s.

16         456.072, F.S.; providing an additional ground

17         under which a health care practitioner who

18         prescribes medicinal drugs or controlled

19         substances may be subject to discipline by the

20         Department of Health or the appropriate board

21         having jurisdiction over the health care

22         practitioner; authorizing the Department of

23         Health to initiate a disciplinary investigation

24         of prescribing practitioners under specified

25         circumstances; amending s. 465.188, F.S.;

26         deleting the requirement that the Agency for

27         Health Care Administration give pharmacists at

28         least 1 week's notice prior to an audit;

29         specifying an effective date for certain audit

30         criteria; creating s. 812.0191, F.S.; providing

31         definitions; providing that a person who

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    Florida Senate - 2004                                  SB 2876
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 1         traffics in property paid for in whole or in

 2         part by the Medicaid program, or who knowingly

 3         finances, directs, or traffics in such

 4         property, commits a felony; providing specified

 5         criminal penalties depending on the value of

 6         the property; amending s. 895.02, F.S.; adding

 7         Medicaid recipient fraud to the definition of

 8         the term "racketeering activity"; amending s.

 9         905.34, F.S.; adding any criminal violation of

10         s. 409.920 or s. 409.9201, F.S., to the list of

11         crimes within the jurisdiction of the statewide

12         grand jury; providing an effective date.

13  

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

15  

16         Section 1.  Subsection (1) of section 16.56, Florida

17  Statutes, is amended to read:

18         16.56  Office of Statewide Prosecution.--

19         (1)  There is created in the Department of Legal

20  Affairs an Office of Statewide Prosecution.  The office shall

21  be a separate "budget entity" as that term is defined in

22  chapter 216.  The office may:

23         (a)  Investigate and prosecute the offenses of:

24         1.  Bribery, burglary, criminal usury, extortion,

25  gambling, kidnapping, larceny, murder, prostitution, perjury,

26  robbery, carjacking, and home-invasion robbery;

27         2.  Any crime involving narcotic or other dangerous

28  drugs;

29         3.  Any violation of the provisions of the Florida RICO

30  (Racketeer Influenced and Corrupt Organization) Act, including

31  any offense listed in the definition of racketeering activity

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 1  in s. 895.02(1)(a), providing such listed offense is

 2  investigated in connection with a violation of s. 895.03 and

 3  is charged in a separate count of an information or indictment

 4  containing a count charging a violation of s. 895.03, the

 5  prosecution of which listed offense may continue independently

 6  if the prosecution of the violation of s. 895.03 is terminated

 7  for any reason;

 8         4.  Any violation of the provisions of the Florida

 9  Anti-Fencing Act;

10         5.  Any violation of the provisions of the Florida

11  Antitrust Act of 1980, as amended;

12         6.  Any crime involving, or resulting in, fraud or

13  deceit upon any person;

14         7.  Any violation of s. 847.0135, relating to computer

15  pornography and child exploitation prevention, or any offense

16  related to a violation of s. 847.0135;

17         8.  Any violation of the provisions of chapter 815; or

18         9.  Any criminal violation of part I of chapter 499; or

19         10.  Any criminal violation of s. 409.920 or s.

20  409.9201;

21  

22  or any attempt, solicitation, or conspiracy to commit any of

23  the crimes specifically enumerated above.  The office shall

24  have such power only when any such offense is occurring, or

25  has occurred, in two or more judicial circuits as part of a

26  related transaction, or when any such offense is connected

27  with an organized criminal conspiracy affecting two or more

28  judicial circuits.

29         (b)  Upon request, cooperate with and assist state

30  attorneys and state and local law enforcement officials in

31  their efforts against organized crimes.

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 1         (c)  Request and receive from any department, division,

 2  board, bureau, commission, or other agency of the state, or of

 3  any political subdivision thereof, cooperation and assistance

 4  in the performance of its duties.

 5         Section 2.  Section 409.912, Florida Statutes, is

 6  amended to read:

 7         409.912  Cost-effective purchasing of health care.--The

 8  agency shall purchase goods and services for Medicaid

 9  recipients in the most cost-effective manner consistent with

10  the delivery of quality medical care. To ensure that medical

11  services are effectively utilized, the agency may, in any

12  case, require a confirmation or second physician's opinion of

13  the correct diagnosis before authorizing payment for medical

14  treatment. Such confirmation or second opinion shall be

15  rendered in a manner approved by the agency. The agency shall

16  maximize the use of prepaid per capita and prepaid aggregate

17  fixed-sum basis services when appropriate and other

18  alternative service delivery and reimbursement methodologies,

19  including competitive bidding pursuant to s. 287.057, designed

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

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

22  minimize the exposure of recipients to the need for acute

23  inpatient, custodial, and other institutional care and the

24  inappropriate or unnecessary use of high-cost services. The

25  agency may mandate establish prior authorization, drug therapy

26  management, or disease management participation requirements

27  for certain populations of Medicaid beneficiaries, certain

28  drug classes, or particular drugs to prevent fraud, abuse,

29  overuse, and possible dangerous drug interactions. The

30  Pharmaceutical and Therapeutics Committee shall make

31  recommendations to the agency on drugs for which prior

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    Florida Senate - 2004                                  SB 2876
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 1  authorization is required. The agency shall inform the

 2  Pharmaceutical and Therapeutics Committee of its decisions

 3  regarding drugs subject to prior authorization.

 4         (1)  The agency shall work with the Department of

 5  Children and Family Services to ensure access of children and

 6  families in the child protection system to needed and

 7  appropriate mental health and substance abuse services.

 8         (2)  The agency may enter into agreements with

 9  appropriate agents of other state agencies or of any agency of

10  the Federal Government and accept such duties in respect to

11  social welfare or public aid as may be necessary to implement

12  the provisions of Title XIX of the Social Security Act and ss.

13  409.901-409.920.

14         (3)  The agency may contract with health maintenance

15  organizations certified pursuant to part I of chapter 641 for

16  the provision of services to recipients.

17         (4)  The agency may contract with:

18         (a)  An entity that provides no prepaid health care

19  services other than Medicaid services under contract with the

20  agency and which is owned and operated by a county, county

21  health department, or county-owned and operated hospital to

22  provide health care services on a prepaid or fixed-sum basis

23  to recipients, which entity may provide such prepaid services

24  either directly or through arrangements with other providers.

25  Such prepaid health care services entities must be licensed

26  under parts I and III by January 1, 1998, and until then are

27  exempt from the provisions of part I of chapter 641. An entity

28  recognized under this paragraph which demonstrates to the

29  satisfaction of the Office of Insurance Regulation of the

30  Financial Services Commission that it is backed by the full

31  

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 1  faith and credit of the county in which it is located may be

 2  exempted from s. 641.225.

 3         (b)  An entity that is providing comprehensive

 4  behavioral health care services to certain Medicaid recipients

 5  through a capitated, prepaid arrangement pursuant to the

 6  federal waiver provided for by s. 409.905(5). Such an entity

 7  must be licensed under chapter 624, chapter 636, or chapter

 8  641 and must possess the clinical systems and operational

 9  competence to manage risk and provide comprehensive behavioral

10  health care to Medicaid recipients. As used in this paragraph,

11  the term "comprehensive behavioral health care services" means

12  covered mental health and substance abuse treatment services

13  that are available to Medicaid recipients. The secretary of

14  the Department of Children and Family Services shall approve

15  provisions of procurements related to children in the

16  department's care or custody prior to enrolling such children

17  in a prepaid behavioral health plan. Any contract awarded

18  under this paragraph must be competitively procured. In

19  developing the behavioral health care prepaid plan procurement

20  document, the agency shall ensure that the procurement

21  document requires the contractor to develop and implement a

22  plan to ensure compliance with s. 394.4574 related to services

23  provided to residents of licensed assisted living facilities

24  that hold a limited mental health license. The agency shall

25  seek federal approval to contract with a single entity meeting

26  these requirements to provide comprehensive behavioral health

27  care services to all Medicaid recipients in an AHCA area. Each

28  entity must offer sufficient choice of providers in its

29  network to ensure recipient access to care and the opportunity

30  to select a provider with whom they are satisfied. The network

31  shall include all public mental health hospitals. To ensure

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 1  unimpaired access to behavioral health care services by

 2  Medicaid recipients, all contracts issued pursuant to this

 3  paragraph shall require 80 percent of the capitation paid to

 4  the managed care plan, including health maintenance

 5  organizations, to be expended for the provision of behavioral

 6  health care services. In the event the managed care plan

 7  expends less than 80 percent of the capitation paid pursuant

 8  to this paragraph for the provision of behavioral health care

 9  services, the difference shall be returned to the agency. The

10  agency shall provide the managed care plan with a

11  certification letter indicating the amount of capitation paid

12  during each calendar year for the provision of behavioral

13  health care services pursuant to this section. The agency may

14  reimburse for substance abuse treatment services on a

15  fee-for-service basis until the agency finds that adequate

16  funds are available for capitated, prepaid arrangements.

17         1.  By January 1, 2001, the agency shall modify the

18  contracts with the entities providing comprehensive inpatient

19  and outpatient mental health care services to Medicaid

20  recipients in Hillsborough, Highlands, Hardee, Manatee, and

21  Polk Counties, to include substance abuse treatment services.

22         2.  By July 1, 2003, the agency and the Department of

23  Children and Family Services shall execute a written agreement

24  that requires collaboration and joint development of all

25  policy, budgets, procurement documents, contracts, and

26  monitoring plans that have an impact on the state and Medicaid

27  community mental health and targeted case management programs.

28         3.  By July 1, 2006, the agency and the Department of

29  Children and Family Services shall contract with managed care

30  entities in each AHCA area except area 6 or arrange to provide

31  comprehensive inpatient and outpatient mental health and

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 1  substance abuse services through capitated prepaid

 2  arrangements to all Medicaid recipients who are eligible to

 3  participate in such plans under federal law and regulation. In

 4  AHCA areas where eligible individuals number less than

 5  150,000, the agency shall contract with a single managed care

 6  plan. The agency may contract with more than one plan in AHCA

 7  areas where the eligible population exceeds 150,000. Contracts

 8  awarded pursuant to this section shall be competitively

 9  procured. Both for-profit and not-for-profit corporations

10  shall be eligible to compete.

11         4.  By October 1, 2003, the agency and the department

12  shall submit a plan to the Governor, the President of the

13  Senate, and the Speaker of the House of Representatives which

14  provides for the full implementation of capitated prepaid

15  behavioral health care in all areas of the state. The plan

16  shall include provisions which ensure that children and

17  families receiving foster care and other related services are

18  appropriately served and that these services assist the

19  community-based care lead agencies in meeting the goals and

20  outcomes of the child welfare system. The plan will be

21  developed with the participation of community-based lead

22  agencies, community alliances, sheriffs, and community

23  providers serving dependent children.

24         a.  Implementation shall begin in 2003 in those AHCA

25  areas of the state where the agency is able to establish

26  sufficient capitation rates.

27         b.  If the agency determines that the proposed

28  capitation rate in any area is insufficient to provide

29  appropriate services, the agency may adjust the capitation

30  rate to ensure that care will be available. The agency and the

31  department may use existing general revenue to address any

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 1  additional required match but may not over-obligate existing

 2  funds on an annualized basis.

 3         c.  Subject to any limitations provided for in the

 4  General Appropriations Act, the agency, in compliance with

 5  appropriate federal authorization, shall develop policies and

 6  procedures that allow for certification of local and state

 7  funds.

 8         5.  Children residing in a statewide inpatient

 9  psychiatric program, or in a Department of Juvenile Justice or

10  a Department of Children and Family Services residential

11  program approved as a Medicaid behavioral health overlay

12  services provider shall not be included in a behavioral health

13  care prepaid health plan pursuant to this paragraph.

14         6.  In converting to a prepaid system of delivery, the

15  agency shall in its procurement document require an entity

16  providing comprehensive behavioral health care services to

17  prevent the displacement of indigent care patients by

18  enrollees in the Medicaid prepaid health plan providing

19  behavioral health care services from facilities receiving

20  state funding to provide indigent behavioral health care, to

21  facilities licensed under chapter 395 which do not receive

22  state funding for indigent behavioral health care, or

23  reimburse the unsubsidized facility for the cost of behavioral

24  health care provided to the displaced indigent care patient.

25         7.  Traditional community mental health providers under

26  contract with the Department of Children and Family Services

27  pursuant to part IV of chapter 394, child welfare providers

28  under contract with the Department of Children and Family

29  Services, and inpatient mental health providers licensed

30  pursuant to chapter 395 must be offered an opportunity to

31  

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 1  accept or decline a contract to participate in any provider

 2  network for prepaid behavioral health services.

 3         (c)  A federally qualified health center or an entity

 4  owned by one or more federally qualified health centers or an

 5  entity owned by other migrant and community health centers

 6  receiving non-Medicaid financial support from the Federal

 7  Government to provide health care services on a prepaid or

 8  fixed-sum basis to recipients. Such prepaid health care

 9  services entity must be licensed under parts I and III of

10  chapter 641, but shall be prohibited from serving Medicaid

11  recipients on a prepaid basis, until such licensure has been

12  obtained.  However, such an entity is exempt from s. 641.225

13  if the entity meets the requirements specified in subsections

14  (15) and (16).

15         (d)  A provider service network may be reimbursed on a

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

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

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

19  appropriate financial reserve, quality assurance, and patient

20  rights requirements as established by the agency.  The agency

21  shall award contracts on a competitive bid basis and shall

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

23  recipients assigned to a demonstration project shall be chosen

24  equally from those who would otherwise have been assigned to

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

26  federal Medicaid waivers as necessary to implement the

27  provisions of this section.

28         (e)  An entity that provides comprehensive behavioral

29  health care services to certain Medicaid recipients through an

30  administrative services organization agreement. Such an entity

31  must possess the clinical systems and operational competence

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 1  to provide comprehensive health care to Medicaid recipients.

 2  As used in this paragraph, the term "comprehensive behavioral

 3  health care services" means covered mental health and

 4  substance abuse treatment services that are available to

 5  Medicaid recipients. Any contract awarded under this paragraph

 6  must be competitively procured. The agency must ensure that

 7  Medicaid recipients have available the choice of at least two

 8  managed care plans for their behavioral health care services.

 9         (f)  An entity that provides in-home physician services

10  to test the cost-effectiveness of enhanced home-based medical

11  care to Medicaid recipients with degenerative neurological

12  diseases and other diseases or disabling conditions associated

13  with high costs to Medicaid. The program shall be designed to

14  serve very disabled persons and to reduce Medicaid reimbursed

15  costs for inpatient, outpatient, and emergency department

16  services. The agency shall contract with vendors on a

17  risk-sharing basis.

18         (g)  Children's provider networks that provide care

19  coordination and care management for Medicaid-eligible

20  pediatric patients, primary care, authorization of specialty

21  care, and other urgent and emergency care through organized

22  providers designed to service Medicaid eligibles under age 18

23  and pediatric emergency departments' diversion programs. The

24  networks shall provide after-hour operations, including

25  evening and weekend hours, to promote, when appropriate, the

26  use of the children's networks rather than hospital emergency

27  departments.

28         (h)  An entity authorized in s. 430.205 to contract

29  with the agency and the Department of Elderly Affairs to

30  provide health care and social services on a prepaid or

31  fixed-sum basis to elderly recipients. Such prepaid health

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 1  care services entities are exempt from the provisions of part

 2  I of chapter 641 for the first 3 years of operation. An entity

 3  recognized under this paragraph that demonstrates to the

 4  satisfaction of the Office of Insurance Regulation that it is

 5  backed by the full faith and credit of one or more counties in

 6  which it operates may be exempted from s. 641.225.

 7         (i)  A Children's Medical Services network, as defined

 8  in s. 391.021.

 9         (5)  By October 1, 2003, the agency and the department

10  shall, to the extent feasible, develop a plan for implementing

11  new Medicaid procedure codes for emergency and crisis care,

12  supportive residential services, and other services designed

13  to maximize the use of Medicaid funds for Medicaid-eligible

14  recipients. The agency shall include in the agreement

15  developed pursuant to subsection (4) a provision that ensures

16  that the match requirements for these new procedure codes are

17  met by certifying eligible general revenue or local funds that

18  are currently expended on these services by the department

19  with contracted alcohol, drug abuse, and mental health

20  providers. The plan must describe specific procedure codes to

21  be implemented, a projection of the number of procedures to be

22  delivered during fiscal year 2003-2004, and a financial

23  analysis that describes the certified match procedures, and

24  accountability mechanisms, projects the earnings associated

25  with these procedures, and describes the sources of state

26  match. This plan may not be implemented in any part until

27  approved by the Legislative Budget Commission. If such

28  approval has not occurred by December 31, 2003, the plan shall

29  be submitted for consideration by the 2004 Legislature.

30         (6)  The agency may contract with any public or private

31  entity otherwise authorized by this section on a prepaid or

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 1  fixed-sum basis for the provision of health care services to

 2  recipients. An entity may provide prepaid services to

 3  recipients, either directly or through arrangements with other

 4  entities, if each entity involved in providing services:

 5         (a)  Is organized primarily for the purpose of

 6  providing health care or other services of the type regularly

 7  offered to Medicaid recipients;

 8         (b)  Ensures that services meet the standards set by

 9  the agency for quality, appropriateness, and timeliness;

10         (c)  Makes provisions satisfactory to the agency for

11  insolvency protection and ensures that neither enrolled

12  Medicaid recipients nor the agency will be liable for the

13  debts of the entity;

14         (d)  Submits to the agency, if a private entity, a

15  financial plan that the agency finds to be fiscally sound and

16  that provides for working capital in the form of cash or

17  equivalent liquid assets excluding revenues from Medicaid

18  premium payments equal to at least the first 3 months of

19  operating expenses or $200,000, whichever is greater;

20         (e)  Furnishes evidence satisfactory to the agency of

21  adequate liability insurance coverage or an adequate plan of

22  self-insurance to respond to claims for injuries arising out

23  of the furnishing of health care;

24         (f)  Provides, through contract or otherwise, for

25  periodic review of its medical facilities and services, as

26  required by the agency; and

27         (g)  Provides organizational, operational, financial,

28  and other information required by the agency.

29         (7)  The agency may contract on a prepaid or fixed-sum

30  basis with any health insurer that:

31  

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 1         (a)  Pays for health care services provided to enrolled

 2  Medicaid recipients in exchange for a premium payment paid by

 3  the agency;

 4         (b)  Assumes the underwriting risk; and

 5         (c)  Is organized and licensed under applicable

 6  provisions of the Florida Insurance Code and is currently in

 7  good standing with the Office of Insurance Regulation.

 8         (8)  The agency may contract on a prepaid or fixed-sum

 9  basis with an exclusive provider organization to provide

10  health care services to Medicaid recipients provided that the

11  exclusive provider organization meets applicable managed care

12  plan requirements in this section, ss. 409.9122, 409.9123,

13  409.9128, and 627.6472, and other applicable provisions of

14  law.

15         (9)  The Agency for Health Care Administration may

16  provide cost-effective purchasing of chiropractic services on

17  a fee-for-service basis to Medicaid recipients through

18  arrangements with a statewide chiropractic preferred provider

19  organization incorporated in this state as a not-for-profit

20  corporation.  The agency shall ensure that the benefit limits

21  and prior authorization requirements in the current Medicaid

22  program shall apply to the services provided by the

23  chiropractic preferred provider organization.

24         (10)  The agency shall not contract on a prepaid or

25  fixed-sum basis for Medicaid services with an entity which

26  knows or reasonably should know that any officer, director,

27  agent, managing employee, or owner of stock or beneficial

28  interest in excess of 5 percent common or preferred stock, or

29  the entity itself, has been found guilty of, regardless of

30  adjudication, or entered a plea of nolo contendere, or guilty,

31  to:

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 1         (a)  Fraud;

 2         (b)  Violation of federal or state antitrust statutes,

 3  including those proscribing price fixing between competitors

 4  and the allocation of customers among competitors;

 5         (c)  Commission of a felony involving embezzlement,

 6  theft, forgery, income tax evasion, bribery, falsification or

 7  destruction of records, making false statements, receiving

 8  stolen property, making false claims, or obstruction of

 9  justice; or

10         (d)  Any crime in any jurisdiction which directly

11  relates to the provision of health services on a prepaid or

12  fixed-sum basis.

13         (11)  The agency, after notifying the Legislature, may

14  apply for waivers of applicable federal laws and regulations

15  as necessary to implement more appropriate systems of health

16  care for Medicaid recipients and reduce the cost of the

17  Medicaid program to the state and federal governments and

18  shall implement such programs, after legislative approval,

19  within a reasonable period of time after federal approval.

20  These programs must be designed primarily to reduce the need

21  for inpatient care, custodial care and other long-term or

22  institutional care, and other high-cost services.

23         (a)  Prior to seeking legislative approval of such a

24  waiver as authorized by this subsection, the agency shall

25  provide notice and an opportunity for public comment.  Notice

26  shall be provided to all persons who have made requests of the

27  agency for advance notice and shall be published in the

28  Florida Administrative Weekly not less than 28 days prior to

29  the intended action.

30         (b)  Notwithstanding s. 216.292, funds that are

31  appropriated to the Department of Elderly Affairs for the

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 1  Assisted Living for the Elderly Medicaid waiver and are not

 2  expended shall be transferred to the agency to fund

 3  Medicaid-reimbursed nursing home care.

 4         (12)  The agency shall establish a postpayment

 5  utilization control program designed to identify recipients

 6  who may inappropriately overuse or underuse Medicaid services

 7  and shall provide methods to correct such misuse.

 8         (13)  The agency shall develop and provide coordinated

 9  systems of care for Medicaid recipients and may contract with

10  public or private entities to develop and administer such

11  systems of care among public and private health care providers

12  in a given geographic area.

13         (14)  The agency shall operate or contract for the

14  operation of utilization management and incentive systems

15  designed to encourage cost-effective use services.

16         (15)(a)  The agency shall operate the Comprehensive

17  Assessment and Review (CARES) nursing facility preadmission

18  screening program to ensure that Medicaid payment for nursing

19  facility care is made only for individuals whose conditions

20  require such care and to ensure that long-term care services

21  are provided in the setting most appropriate to the needs of

22  the person and in the most economical manner possible. The

23  CARES program shall also ensure that individuals participating

24  in Medicaid home and community-based waiver programs meet

25  criteria for those programs, consistent with approved federal

26  waivers.

27         (b)  The agency shall operate the CARES program through

28  an interagency agreement with the Department of Elderly

29  Affairs.

30         (c)  Prior to making payment for nursing facility

31  services for a Medicaid recipient, the agency must verify that

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 1  the nursing facility preadmission screening program has

 2  determined that the individual requires nursing facility care

 3  and that the individual cannot be safely served in

 4  community-based programs. The nursing facility preadmission

 5  screening program shall refer a Medicaid recipient to a

 6  community-based program if the individual could be safely

 7  served at a lower cost and the recipient chooses to

 8  participate in such program.

 9         (d)  By January 1 of each year, the agency shall submit

10  a report to the Legislature and the Office of Long-Term-Care

11  Policy describing the operations of the CARES program. The

12  report must describe:

13         1.  Rate of diversion to community alternative

14  programs;

15         2.  CARES program staffing needs to achieve additional

16  diversions;

17         3.  Reasons the program is unable to place individuals

18  in less restrictive settings when such individuals desired

19  such services and could have been served in such settings;

20         4.  Barriers to appropriate placement, including

21  barriers due to policies or operations of other agencies or

22  state-funded programs; and

23         5.  Statutory changes necessary to ensure that

24  individuals in need of long-term care services receive care in

25  the least restrictive environment.

26         (16)(a)  The agency shall identify health care

27  utilization and price patterns within the Medicaid program

28  which are not cost-effective or medically appropriate and

29  assess the effectiveness of new or alternate methods of

30  providing and monitoring service, and may implement such

31  methods as it considers appropriate. Such methods may include

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 1  disease management initiatives, an integrated and systematic

 2  approach for managing the health care needs of recipients who

 3  are at risk of or diagnosed with a specific disease by using

 4  best practices, prevention strategies, clinical-practice

 5  improvement, clinical interventions and protocols, outcomes

 6  research, information technology, and other tools and

 7  resources to reduce overall costs and improve measurable

 8  outcomes.

 9         (b)  The responsibility of the agency under this

10  subsection shall include the development of capabilities to

11  identify actual and optimal practice patterns; patient and

12  provider educational initiatives; methods for determining

13  patient compliance with prescribed treatments; fraud, waste,

14  and abuse prevention and detection programs; and beneficiary

15  case management programs.

16         1.  The practice pattern identification program shall

17  evaluate practitioner prescribing patterns based on national

18  and regional practice guidelines, comparing practitioners to

19  their peer groups. The agency and its Drug Utilization Review

20  Board shall consult with the Department of Health and a panel

21  of practicing health care professionals consisting of the

22  following: the Speaker of the House of Representatives and the

23  President of the Senate shall each appoint three physicians

24  licensed under chapter 458 or chapter 459; and the Governor

25  shall appoint two pharmacists licensed under chapter 465 and

26  one dentist licensed under chapter 466 who is an oral surgeon.

27  Terms of the panel members shall expire at the discretion of

28  the appointing official. The panel shall begin its work by

29  August 1, 1999, regardless of the number of appointments made

30  by that date. The advisory panel shall be responsible for

31  evaluating treatment guidelines and recommending ways to

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 1  incorporate their use in the practice pattern identification

 2  program. Practitioners who are prescribing inappropriately or

 3  inefficiently, as determined by the agency, may have their

 4  prescribing of certain drugs subject to prior authorization or

 5  may be terminated from all participation in the Medicaid

 6  program.

 7         2.  The agency shall also develop educational

 8  interventions designed to promote the proper use of

 9  medications by providers and beneficiaries.

10         3.  The agency shall implement a pharmacy fraud, waste,

11  and abuse initiative that may include a surety bond or letter

12  of credit requirement for participating pharmacies, enhanced

13  provider auditing practices, the use of additional fraud and

14  abuse software, recipient management programs for

15  beneficiaries inappropriately using their benefits, and other

16  steps that will eliminate provider and recipient fraud, waste,

17  and abuse. The initiative shall address enforcement efforts to

18  reduce the number and use of counterfeit prescriptions.

19         4.  By September 30, 2002, the agency shall contract

20  with an entity in the state to implement a wireless handheld

21  clinical pharmacology drug information database for

22  practitioners. The initiative shall be designed to enhance the

23  agency's efforts to reduce fraud, abuse, and errors in the

24  prescription drug benefit program and to otherwise further the

25  intent of this paragraph.

26         5.  The agency may apply for any federal waivers needed

27  to implement this paragraph.

28         (17)  An entity contracting on a prepaid or fixed-sum

29  basis shall, in addition to meeting any applicable statutory

30  surplus requirements, also maintain at all times in the form

31  of cash, investments that mature in less than 180 days

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 1  allowable as admitted assets by the Office of Insurance

 2  Regulation, and restricted funds or deposits controlled by the

 3  agency or the Office of Insurance Regulation, a surplus amount

 4  equal to one-and-one-half times the entity's monthly Medicaid

 5  prepaid revenues. As used in this subsection, the term

 6  "surplus" means the entity's total assets minus total

 7  liabilities. If an entity's surplus falls below an amount

 8  equal to one-and-one-half times the entity's monthly Medicaid

 9  prepaid revenues, the agency shall prohibit the entity from

10  engaging in marketing and preenrollment activities, shall

11  cease to process new enrollments, and shall not renew the

12  entity's contract until the required balance is achieved.  The

13  requirements of this subsection do not apply:

14         (a)  Where a public entity agrees to fund any deficit

15  incurred by the contracting entity; or

16         (b)  Where the entity's performance and obligations are

17  guaranteed in writing by a guaranteeing organization which:

18         1.  Has been in operation for at least 5 years and has

19  assets in excess of $50 million; or

20         2.  Submits a written guarantee acceptable to the

21  agency which is irrevocable during the term of the contracting

22  entity's contract with the agency and, upon termination of the

23  contract, until the agency receives proof of satisfaction of

24  all outstanding obligations incurred under the contract.

25         (18)(a)  The agency may require an entity contracting

26  on a prepaid or fixed-sum basis to establish a restricted

27  insolvency protection account with a federally guaranteed

28  financial institution licensed to do business in this state.

29  The entity shall deposit into that account 5 percent of the

30  capitation payments made by the agency each month until a

31  maximum total of 2 percent of the total current contract

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 1  amount is reached. The restricted insolvency protection

 2  account may be drawn upon with the authorized signatures of

 3  two persons designated by the entity and two representatives

 4  of the agency. If the agency finds that the entity is

 5  insolvent, the agency may draw upon the account solely with

 6  the two authorized signatures of representatives of the

 7  agency, and the funds may be disbursed to meet financial

 8  obligations incurred by the entity under the prepaid contract.

 9  If the contract is terminated, expired, or not continued, the

10  account balance must be released by the agency to the entity

11  upon receipt of proof of satisfaction of all outstanding

12  obligations incurred under this contract.

13         (b)  The agency may waive the insolvency protection

14  account requirement in writing when evidence is on file with

15  the agency of adequate insolvency insurance and reinsurance

16  that will protect enrollees if the entity becomes unable to

17  meet its obligations.

18         (19)  An entity that contracts with the agency on a

19  prepaid or fixed-sum basis for the provision of Medicaid

20  services shall reimburse any hospital or physician that is

21  outside the entity's authorized geographic service area as

22  specified in its contract with the agency, and that provides

23  services authorized by the entity to its members, at a rate

24  negotiated with the hospital or physician for the provision of

25  services or according to the lesser of the following:

26         (a)  The usual and customary charges made to the

27  general public by the hospital or physician; or

28         (b)  The Florida Medicaid reimbursement rate

29  established for the hospital or physician.

30         (20)  When a merger or acquisition of a Medicaid

31  prepaid contractor has been approved by the Office of

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 1  Insurance Regulation pursuant to s. 628.4615, the agency shall

 2  approve the assignment or transfer of the appropriate Medicaid

 3  prepaid contract upon request of the surviving entity of the

 4  merger or acquisition if the contractor and the other entity

 5  have been in good standing with the agency for the most recent

 6  12-month period, unless the agency determines that the

 7  assignment or transfer would be detrimental to the Medicaid

 8  recipients or the Medicaid program.  To be in good standing,

 9  an entity must not have failed accreditation or committed any

10  material violation of the requirements of s. 641.52 and must

11  meet the Medicaid contract requirements.  For purposes of this

12  section, a merger or acquisition means a change in controlling

13  interest of an entity, including an asset or stock purchase.

14         (21)  Any entity contracting with the agency pursuant

15  to this section to provide health care services to Medicaid

16  recipients is prohibited from engaging in any of the following

17  practices or activities:

18         (a)  Practices that are discriminatory, including, but

19  not limited to, attempts to discourage participation on the

20  basis of actual or perceived health status.

21         (b)  Activities that could mislead or confuse

22  recipients, or misrepresent the organization, its marketing

23  representatives, or the agency. Violations of this paragraph

24  include, but are not limited to:

25         1.  False or misleading claims that marketing

26  representatives are employees or representatives of the state

27  or county, or of anyone other than the entity or the

28  organization by whom they are reimbursed.

29         2.  False or misleading claims that the entity is

30  recommended or endorsed by any state or county agency, or by

31  

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 1  any other organization which has not certified its endorsement

 2  in writing to the entity.

 3         3.  False or misleading claims that the state or county

 4  recommends that a Medicaid recipient enroll with an entity.

 5         4.  Claims that a Medicaid recipient will lose benefits

 6  under the Medicaid program, or any other health or welfare

 7  benefits to which the recipient is legally entitled, if the

 8  recipient does not enroll with the entity.

 9         (c)  Granting or offering of any monetary or other

10  valuable consideration for enrollment, except as authorized by

11  subsection (22).

12         (d)  Door-to-door solicitation of recipients who have

13  not contacted the entity or who have not invited the entity to

14  make a presentation.

15         (e)  Solicitation of Medicaid recipients by marketing

16  representatives stationed in state offices unless approved and

17  supervised by the agency or its agent and approved by the

18  affected state agency when solicitation occurs in an office of

19  the state agency.  The agency shall ensure that marketing

20  representatives stationed in state offices shall market their

21  managed care plans to Medicaid recipients only in designated

22  areas and in such a way as to not interfere with the

23  recipients' activities in the state office.

24         (f)  Enrollment of Medicaid recipients.

25         (22)  The agency may impose a fine for a violation of

26  this section or the contract with the agency by a person or

27  entity that is under contract with the agency.  With respect

28  to any nonwillful violation, such fine shall not exceed $2,500

29  per violation.  In no event shall such fine exceed an

30  aggregate amount of $10,000 for all nonwillful violations

31  arising out of the same action.  With respect to any knowing

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 1  and willful violation of this section or the contract with the

 2  agency, the agency may impose a fine upon the entity in an

 3  amount not to exceed $20,000 for each such violation.  In no

 4  event shall such fine exceed an aggregate amount of $100,000

 5  for all knowing and willful violations arising out of the same

 6  action.

 7         (23)  A health maintenance organization or a person or

 8  entity exempt from chapter 641 that is under contract with the

 9  agency for the provision of health care services to Medicaid

10  recipients may not use or distribute marketing materials used

11  to solicit Medicaid recipients, unless such materials have

12  been approved by the agency. The provisions of this subsection

13  do not apply to general advertising and marketing materials

14  used by a health maintenance organization to solicit both

15  non-Medicaid subscribers and Medicaid recipients.

16         (24)  Upon approval by the agency, health maintenance

17  organizations and persons or entities exempt from chapter 641

18  that are under contract with the agency for the provision of

19  health care services to Medicaid recipients may be permitted

20  within the capitation rate to provide additional health

21  benefits that the agency has found are of high quality, are

22  practicably available, provide reasonable value to the

23  recipient, and are provided at no additional cost to the

24  state.

25         (25)  The agency shall utilize the statewide health

26  maintenance organization complaint hotline for the purpose of

27  investigating and resolving Medicaid and prepaid health plan

28  complaints, maintaining a record of complaints and confirmed

29  problems, and receiving disenrollment requests made by

30  recipients.

31  

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 1         (26)  The agency shall require the publication of the

 2  health maintenance organization's and the prepaid health

 3  plan's consumer services telephone numbers and the "800"

 4  telephone number of the statewide health maintenance

 5  organization complaint hotline on each Medicaid identification

 6  card issued by a health maintenance organization or prepaid

 7  health plan contracting with the agency to serve Medicaid

 8  recipients and on each subscriber handbook issued to a

 9  Medicaid recipient.

10         (27)  The agency shall establish a health care quality

11  improvement system for those entities contracting with the

12  agency pursuant to this section, incorporating all the

13  standards and guidelines developed by the Medicaid Bureau of

14  the Health Care Financing Administration as a part of the

15  quality assurance reform initiative.  The system shall

16  include, but need not be limited to, the following:

17         (a)  Guidelines for internal quality assurance

18  programs, including standards for:

19         1.  Written quality assurance program descriptions.

20         2.  Responsibilities of the governing body for

21  monitoring, evaluating, and making improvements to care.

22         3.  An active quality assurance committee.

23         4.  Quality assurance program supervision.

24         5.  Requiring the program to have adequate resources to

25  effectively carry out its specified activities.

26         6.  Provider participation in the quality assurance

27  program.

28         7.  Delegation of quality assurance program activities.

29         8.  Credentialing and recredentialing.

30         9.  Enrollee rights and responsibilities.

31  

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 1         10.  Availability and accessibility to services and

 2  care.

 3         11.  Ambulatory care facilities.

 4         12.  Accessibility and availability of medical records,

 5  as well as proper recordkeeping and process for record review.

 6         13.  Utilization review.

 7         14.  A continuity of care system.

 8         15.  Quality assurance program documentation.

 9         16.  Coordination of quality assurance activity with

10  other management activity.

11         17.  Delivering care to pregnant women and infants; to

12  elderly and disabled recipients, especially those who are at

13  risk of institutional placement; to persons with developmental

14  disabilities; and to adults who have chronic, high-cost

15  medical conditions.

16         (b)  Guidelines which require the entities to conduct

17  quality-of-care studies which:

18         1.  Target specific conditions and specific health

19  service delivery issues for focused monitoring and evaluation.

20         2.  Use clinical care standards or practice guidelines

21  to objectively evaluate the care the entity delivers or fails

22  to deliver for the targeted clinical conditions and health

23  services delivery issues.

24         3.  Use quality indicators derived from the clinical

25  care standards or practice guidelines to screen and monitor

26  care and services delivered.

27         (c)  Guidelines for external quality review of each

28  contractor which require: focused studies of patterns of care;

29  individual care review in specific situations; and followup

30  activities on previous pattern-of-care study findings and

31  individual-care-review findings.  In designing the external

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 1  quality review function and determining how it is to operate

 2  as part of the state's overall quality improvement system, the

 3  agency shall construct its external quality review

 4  organization and entity contracts to address each of the

 5  following:

 6         1.  Delineating the role of the external quality review

 7  organization.

 8         2.  Length of the external quality review organization

 9  contract with the state.

10         3.  Participation of the contracting entities in

11  designing external quality review organization review

12  activities.

13         4.  Potential variation in the type of clinical

14  conditions and health services delivery issues to be studied

15  at each plan.

16         5.  Determining the number of focused pattern-of-care

17  studies to be conducted for each plan.

18         6.  Methods for implementing focused studies.

19         7.  Individual care review.

20         8.  Followup activities.

21         (28)  In order to ensure that children receive health

22  care services for which an entity has already been

23  compensated, an entity contracting with the agency pursuant to

24  this section shall achieve an annual Early and Periodic

25  Screening, Diagnosis, and Treatment (EPSDT) Service screening

26  rate of at least 60 percent for those recipients continuously

27  enrolled for at least 8 months. The agency shall develop a

28  method by which the EPSDT screening rate shall be calculated.

29  For any entity which does not achieve the annual 60 percent

30  rate, the entity must submit a corrective action plan for the

31  agency's approval.  If the entity does not meet the standard

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 1  established in the corrective action plan during the specified

 2  timeframe, the agency is authorized to impose appropriate

 3  contract sanctions.  At least annually, the agency shall

 4  publicly release the EPSDT Services screening rates of each

 5  entity it has contracted with on a prepaid basis to serve

 6  Medicaid recipients.

 7         (29)  The agency shall perform enrollments and

 8  disenrollments for Medicaid recipients who are eligible for

 9  MediPass or managed care plans. Notwithstanding the

10  prohibition contained in paragraph (19)(f), managed care plans

11  may perform preenrollments of Medicaid recipients under the

12  supervision of the agency or its agents. For the purposes of

13  this section, "preenrollment" means the provision of marketing

14  and educational materials to a Medicaid recipient and

15  assistance in completing the application forms, but shall not

16  include actual enrollment into a managed care plan.  An

17  application for enrollment shall not be deemed complete until

18  the agency or its agent verifies that the recipient made an

19  informed, voluntary choice.  The agency, in cooperation with

20  the Department of Children and Family Services, may test new

21  marketing initiatives to inform Medicaid recipients about

22  their managed care options at selected sites. The agency shall

23  report to the Legislature on the effectiveness of such

24  initiatives. The agency may contract with a third party to

25  perform managed care plan and MediPass enrollment and

26  disenrollment services for Medicaid recipients and is

27  authorized to adopt rules to implement such services. The

28  agency may adjust the capitation rate only to cover the costs

29  of a third-party enrollment and disenrollment contract, and

30  for agency supervision and management of the managed care plan

31  enrollment and disenrollment contract.

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 1         (30)  Any lists of providers made available to Medicaid

 2  recipients, MediPass enrollees, or managed care plan enrollees

 3  shall be arranged alphabetically showing the provider's name

 4  and specialty and, separately, by specialty in alphabetical

 5  order.

 6         (31)  The agency shall establish an enhanced managed

 7  care quality assurance oversight function, to include at least

 8  the following components:

 9         (a)  At least quarterly analysis and followup,

10  including sanctions as appropriate, of managed care

11  participant utilization of services.

12         (b)  At least quarterly analysis and followup,

13  including sanctions as appropriate, of quality findings of the

14  Medicaid peer review organization and other external quality

15  assurance programs.

16         (c)  At least quarterly analysis and followup,

17  including sanctions as appropriate, of the fiscal viability of

18  managed care plans.

19         (d)  At least quarterly analysis and followup,

20  including sanctions as appropriate, of managed care

21  participant satisfaction and disenrollment surveys.

22         (e)  The agency shall conduct regular and ongoing

23  Medicaid recipient satisfaction surveys.

24  

25  The analyses and followup activities conducted by the agency

26  under its enhanced managed care quality assurance oversight

27  function shall not duplicate the activities of accreditation

28  reviewers for entities regulated under part III of chapter

29  641, but may include a review of the finding of such

30  reviewers.

31  

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 1         (32)  Each managed care plan that is under contract

 2  with the agency to provide health care services to Medicaid

 3  recipients shall annually conduct a background check with the

 4  Florida Department of Law Enforcement of all persons with

 5  ownership interest of 5 percent or more or executive

 6  management responsibility for the managed care plan and shall

 7  submit to the agency information concerning any such person

 8  who has been found guilty of, regardless of adjudication, or

 9  has entered a plea of nolo contendere or guilty to, any of the

10  offenses listed in s. 435.03.

11         (33)  The agency shall, by rule, develop a process

12  whereby a Medicaid managed care plan enrollee who wishes to

13  enter hospice care may be disenrolled from the managed care

14  plan within 24 hours after contacting the agency regarding

15  such request. The agency rule shall include a methodology for

16  the agency to recoup managed care plan payments on a pro rata

17  basis if payment has been made for the enrollment month when

18  disenrollment occurs.

19         (34)  The agency and entities which contract with the

20  agency to provide health care services to Medicaid recipients

21  under this section or s. 409.9122 must comply with the

22  provisions of s. 641.513 in providing emergency services and

23  care to Medicaid recipients and MediPass recipients.

24         (35)  All entities providing health care services to

25  Medicaid recipients shall make available, and encourage all

26  pregnant women and mothers with infants to receive, and

27  provide documentation in the medical records to reflect, the

28  following:

29         (a)  Healthy Start prenatal or infant screening.

30         (b)  Healthy Start care coordination, when screening or

31  other factors indicate need.

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 1         (c)  Healthy Start enhanced services in accordance with

 2  the prenatal or infant screening results.

 3         (d)  Immunizations in accordance with recommendations

 4  of the Advisory Committee on Immunization Practices of the

 5  United States Public Health Service and the American Academy

 6  of Pediatrics, as appropriate.

 7         (e)  Counseling and services for family planning to all

 8  women and their partners.

 9         (f)  A scheduled postpartum visit for the purpose of

10  voluntary family planning, to include discussion of all

11  methods of contraception, as appropriate.

12         (g)  Referral to the Special Supplemental Nutrition

13  Program for Women, Infants, and Children (WIC).

14         (36)  Any entity that provides Medicaid prepaid health

15  plan services shall ensure the appropriate coordination of

16  health care services with an assisted living facility in cases

17  where a Medicaid recipient is both a member of the entity's

18  prepaid health plan and a resident of the assisted living

19  facility. If the entity is at risk for Medicaid targeted case

20  management and behavioral health services, the entity shall

21  inform the assisted living facility of the procedures to

22  follow should an emergent condition arise.

23         (37)  The agency may seek and implement federal waivers

24  necessary to provide for cost-effective purchasing of home

25  health services, private duty nursing services,

26  transportation, independent laboratory services, and durable

27  medical equipment and supplies through competitive bidding

28  pursuant to s. 287.057. The agency may request appropriate

29  waivers from the federal Health Care Financing Administration

30  in order to competitively bid such services. The agency may

31  

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 1  exclude providers not selected through the bidding process

 2  from the Medicaid provider network.

 3         (38)  The Agency for Health Care Administration is

 4  directed to issue a request for proposal or intent to

 5  negotiate to implement on a demonstration basis an outpatient

 6  specialty services pilot project in a rural and urban county

 7  in the state.  As used in this subsection, the term

 8  "outpatient specialty services" means clinical laboratory,

 9  diagnostic imaging, and specified home medical services to

10  include durable medical equipment, prosthetics and orthotics,

11  and infusion therapy.

12         (a)  The entity that is awarded the contract to provide

13  Medicaid managed care outpatient specialty services must, at a

14  minimum, meet the following criteria:

15         1.  The entity must be licensed by the Office of

16  Insurance Regulation under part II of chapter 641.

17         2.  The entity must be experienced in providing

18  outpatient specialty services.

19         3.  The entity must demonstrate to the satisfaction of

20  the agency that it provides high-quality services to its

21  patients.

22         4.  The entity must demonstrate that it has in place a

23  complaints and grievance process to assist Medicaid recipients

24  enrolled in the pilot managed care program to resolve

25  complaints and grievances.

26         (b)  The pilot managed care program shall operate for a

27  period of 3 years.  The objective of the pilot program shall

28  be to determine the cost-effectiveness and effects on

29  utilization, access, and quality of providing outpatient

30  specialty services to Medicaid recipients on a prepaid,

31  capitated basis.

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 1         (c)  The agency shall conduct a quality assurance

 2  review of the prepaid health clinic each year that the

 3  demonstration program is in effect. The prepaid health clinic

 4  is responsible for all expenses incurred by the agency in

 5  conducting a quality assurance review.

 6         (d)  The entity that is awarded the contract to provide

 7  outpatient specialty services to Medicaid recipients shall

 8  report data required by the agency in a format specified by

 9  the agency, for the purpose of conducting the evaluation

10  required in paragraph (e).

11         (e)  The agency shall conduct an evaluation of the

12  pilot managed care program and report its findings to the

13  Governor and the Legislature by no later than January 1, 2001.

14         (39)  The agency shall enter into agreements with

15  not-for-profit organizations based in this state for the

16  purpose of providing vision screening.

17         (40)(a)  The agency shall implement a Medicaid

18  prescribed-drug spending-control program that includes the

19  following components:

20         1.  Medicaid prescribed-drug coverage for brand-name

21  drugs for adult Medicaid recipients is limited to the

22  dispensing of four brand-name drugs per month per recipient.

23  Children are exempt from this restriction. Antiretroviral

24  agents are excluded from this limitation. No requirements for

25  prior authorization or other restrictions on medications used

26  to treat mental illnesses such as schizophrenia, severe

27  depression, or bipolar disorder may be imposed on Medicaid

28  recipients. Medications that will be available without

29  restriction for persons with mental illnesses include atypical

30  antipsychotic medications, conventional antipsychotic

31  medications, selective serotonin reuptake inhibitors, and

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 1  other medications used for the treatment of serious mental

 2  illnesses. The agency shall also limit the amount of a

 3  prescribed drug dispensed to no more than a 34-day supply. The

 4  agency shall continue to provide unlimited generic drugs,

 5  contraceptive drugs and items, and diabetic supplies. Although

 6  a drug may be included on the preferred drug formulary, it

 7  would not be exempt from the four-brand limit. The agency may

 8  authorize exceptions to the brand-name-drug restriction based

 9  upon the treatment needs of the patients, only when such

10  exceptions are based on prior consultation provided by the

11  agency or an agency contractor, but the agency must establish

12  procedures to ensure that:

13         a.  There will be a response to a request for prior

14  consultation by telephone or other telecommunication device

15  within 24 hours after receipt of a request for prior

16  consultation;

17         b.  A 72-hour supply of the drug prescribed will be

18  provided in an emergency or when the agency does not provide a

19  response within 24 hours as required by sub-subparagraph a.;

20  and

21         c.  Except for the exception for nursing home residents

22  and other institutionalized adults and except for drugs on the

23  restricted formulary for which prior authorization may be

24  sought by an institutional or community pharmacy, prior

25  authorization for an exception to the brand-name-drug

26  restriction is sought by the prescriber and not by the

27  pharmacy. When prior authorization is granted for a patient in

28  an institutional setting beyond the brand-name-drug

29  restriction, such approval is authorized for 12 months and

30  monthly prior authorization is not required for that patient.

31  

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 1         2.  Reimbursement to pharmacies for Medicaid prescribed

 2  drugs shall be set at the average wholesale price less 13.25

 3  percent.

 4         3.  The agency shall develop and implement a process

 5  for managing the drug therapies of Medicaid recipients who are

 6  using significant numbers of prescribed drugs each month. The

 7  management process may include, but is not limited to,

 8  comprehensive, physician-directed medical-record reviews,

 9  claims analyses, and case evaluations to determine the medical

10  necessity and appropriateness of a patient's treatment plan

11  and drug therapies. The agency may contract with a private

12  organization to provide drug-program-management services. The

13  Medicaid drug benefit management program shall include

14  initiatives to manage drug therapies for HIV/AIDS patients,

15  patients using 20 or more unique prescriptions in a 180-day

16  period, and the top 1,000 patients in annual spending.

17         4.  The agency may limit the size of its pharmacy

18  network based on need, competitive bidding, price

19  negotiations, credentialing, or similar criteria. The agency

20  shall give special consideration to rural areas in determining

21  the size and location of pharmacies included in the Medicaid

22  pharmacy network. A pharmacy credentialing process may include

23  criteria such as a pharmacy's full-service status, location,

24  size, patient educational programs, patient consultation,

25  disease-management services, and other characteristics. The

26  agency may impose a moratorium on Medicaid pharmacy enrollment

27  when it is determined that it has a sufficient number of

28  Medicaid-participating providers.

29         5.  The agency shall develop and implement a program

30  that requires Medicaid practitioners who prescribe drugs to

31  use a counterfeit-proof prescription pad for Medicaid

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 1  prescriptions. The agency shall require the use of

 2  standardized counterfeit-proof prescription pads by

 3  Medicaid-participating prescribers or prescribers who write

 4  prescriptions for Medicaid recipients. The agency may

 5  implement the program in targeted geographic areas or

 6  statewide.

 7         6.  The agency may enter into arrangements that require

 8  manufacturers of generic drugs prescribed to Medicaid

 9  recipients to provide rebates of at least 15.1 percent of the

10  average manufacturer price for the manufacturer's generic

11  products. These arrangements shall require that if a

12  generic-drug manufacturer pays federal rebates for

13  Medicaid-reimbursed drugs at a level below 15.1 percent, the

14  manufacturer must provide a supplemental rebate to the state

15  in an amount necessary to achieve a 15.1-percent rebate level.

16         7.  The agency may establish a preferred drug formulary

17  in accordance with 42 U.S.C. s. 1396r-8, and, pursuant to the

18  establishment of such formulary, it is authorized to negotiate

19  supplemental rebates from manufacturers that are in addition

20  to those required by Title XIX of the Social Security Act and

21  at no less than 10 percent of the average manufacturer price

22  as defined in 42 U.S.C. s. 1936 on the last day of a quarter

23  unless the federal or supplemental rebate, or both, equals or

24  exceeds 25 percent. There is no upper limit on the

25  supplemental rebates the agency may negotiate. The agency may

26  determine that specific products, brand-name or generic, are

27  competitive at lower rebate percentages. Agreement to pay the

28  minimum supplemental rebate percentage will guarantee a

29  manufacturer that the Medicaid Pharmaceutical and Therapeutics

30  Committee will consider a product for inclusion on the

31  preferred drug formulary. However, a pharmaceutical

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 1  manufacturer is not guaranteed placement on the formulary by

 2  simply paying the minimum supplemental rebate. Agency

 3  decisions will be made on the clinical efficacy of a drug and

 4  recommendations of the Medicaid Pharmaceutical and

 5  Therapeutics Committee, as well as the price of competing

 6  products minus federal and state rebates. The agency is

 7  authorized to contract with an outside agency or contractor to

 8  conduct negotiations for supplemental rebates. For the

 9  purposes of this section, the term "supplemental rebates" may

10  include, at the agency's discretion, cash rebates and other

11  program benefits that offset a Medicaid expenditure. Such

12  other program benefits may include, but are not limited to,

13  disease management programs, drug product donation programs,

14  drug utilization control programs, prescriber and beneficiary

15  counseling and education, fraud and abuse initiatives, and

16  other services or administrative investments with guaranteed

17  savings to the Medicaid program in the same year the rebate

18  reduction is included in the General Appropriations Act. The

19  agency is authorized to seek any federal waivers to implement

20  this initiative.

21         8.  The agency shall establish an advisory committee

22  for the purposes of studying the feasibility of using a

23  restricted drug formulary for nursing home residents and other

24  institutionalized adults. The committee shall be comprised of

25  seven members appointed by the Secretary of Health Care

26  Administration. The committee members shall include two

27  physicians licensed under chapter 458 or chapter 459; three

28  pharmacists licensed under chapter 465 and appointed from a

29  list of recommendations provided by the Florida Long-Term Care

30  Pharmacy Alliance; and two pharmacists licensed under chapter

31  465.

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 1         9.  The Agency for Health Care Administration shall

 2  expand home delivery of pharmacy products. To assist Medicaid

 3  patients in securing their prescriptions and reduce program

 4  costs, the agency shall expand its current mail-order-pharmacy

 5  diabetes-supply program to include all generic and brand-name

 6  drugs used by Medicaid patients with diabetes. Medicaid

 7  recipients in the current program may obtain nondiabetes drugs

 8  on a voluntary basis. This initiative is limited to the

 9  geographic area covered by the current contract. The agency

10  may seek and implement any federal waivers necessary to

11  implement this subparagraph.

12         (b)  The agency shall implement this subsection to the

13  extent that funds are appropriated to administer the Medicaid

14  prescribed-drug spending-control program. The agency may

15  contract all or any part of this program to private

16  organizations.

17         (c)  The agency shall submit quarterly reports to the

18  Governor, the President of the Senate, and the Speaker of the

19  House of Representatives which must include, but need not be

20  limited to, the progress made in implementing this subsection

21  and its effect on Medicaid prescribed-drug expenditures.

22         (41)  Notwithstanding the provisions of chapter 287,

23  the agency may, at its discretion, renew a contract or

24  contracts for fiscal intermediary services one or more times

25  for such periods as the agency may decide; however, all such

26  renewals may not combine to exceed a total period longer than

27  the term of the original contract.

28         (42)  The agency shall provide for the development of a

29  demonstration project by establishment in Miami-Dade County of

30  a long-term-care facility licensed pursuant to chapter 395 to

31  improve access to health care for a predominantly minority,

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 1  medically underserved, and medically complex population and to

 2  evaluate alternatives to nursing home care and general acute

 3  care for such population.  Such project is to be located in a

 4  health care condominium and colocated with licensed facilities

 5  providing a continuum of care.  The establishment of this

 6  project is not subject to the provisions of s. 408.036 or s.

 7  408.039.  The agency shall report its findings to the

 8  Governor, the President of the Senate, and the Speaker of the

 9  House of Representatives by January 1, 2003.

10         (43)  The agency shall develop and implement a

11  utilization management program for Medicaid-eligible

12  recipients for the management of occupational, physical,

13  respiratory, and speech therapies. The agency shall establish

14  a utilization program that may require prior authorization in

15  order to ensure medically necessary and cost-effective

16  treatments. The program shall be operated in accordance with a

17  federally approved waiver program or state plan amendment. The

18  agency may seek a federal waiver or state plan amendment to

19  implement this program. The agency may also competitively

20  procure these services from an outside vendor on a regional or

21  statewide basis.

22         (44)  The agency may contract on a prepaid or fixed-sum

23  basis with appropriately licensed prepaid dental health plans

24  to provide dental services.

25         (45)  The agency may mandate a recipient's

26  participation in a provider lock-in program limiting the

27  receipt of goods or services to a single specified provider.

28  The lock-in programs shall include, but are not limited to,

29  pharmacies. The agency shall seek any federal waivers

30  necessary to implement this subsection.

31  

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 1         Section 3.  Section 409.913, Florida Statutes, is

 2  amended to read:

 3         409.913  Oversight of the integrity of the Medicaid

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

 5  activities of Florida Medicaid recipients, and providers and

 6  their representatives, to ensure that fraudulent and abusive

 7  behavior and neglect of recipients occur to the minimum extent

 8  possible, and to recover overpayments and impose sanctions as

 9  appropriate. Beginning January 1, 2003, and each year

10  thereafter, the agency and the Medicaid Fraud Control Unit of

11  the Department of Legal Affairs shall submit a joint report to

12  the Legislature documenting the effectiveness of the state's

13  efforts to control Medicaid fraud and abuse and to recover

14  Medicaid overpayments during the previous fiscal year. The

15  report must describe the number of cases opened and

16  investigated each year; the sources of the cases opened; the

17  disposition of the cases closed each year; the amount of

18  overpayments alleged in preliminary and final audit letters;

19  the number and amount of fines or penalties imposed; any

20  reductions in overpayment amounts negotiated in settlement

21  agreements or by other means; the amount of final agency

22  determinations of overpayments; the amount deducted from

23  federal claiming as a result of overpayments; the amount of

24  overpayments recovered each year; the amount of cost of

25  investigation recovered each year; the average length of time

26  to collect from the time the case was opened until the

27  overpayment is paid in full; the amount determined as

28  uncollectible and the portion of the uncollectible amount

29  subsequently reclaimed from the Federal Government; the number

30  of providers, by type, that are terminated from participation

31  in the Medicaid program as a result of fraud and abuse; and

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 1  all costs associated with discovering and prosecuting cases of

 2  Medicaid overpayments and making recoveries in such cases. The

 3  report must also document actions taken to prevent

 4  overpayments and the number of providers prevented from

 5  enrolling in or reenrolling in the Medicaid program as a

 6  result of documented Medicaid fraud and abuse and must

 7  recommend changes necessary to prevent or recover

 8  overpayments.  For the 2001-2002 fiscal year, the agency shall

 9  prepare a report that contains as much of this information as

10  is available to it.

11         (1)  For the purposes of this section, the term:

12         (a)  "Abuse" means:

13         1.  Provider practices that are inconsistent with

14  generally accepted business or medical practices and that

15  result in an unnecessary cost to the Medicaid program or in

16  reimbursement for goods or services that are not medically

17  necessary or that fail to meet professionally recognized

18  standards for health care.

19         2.  Recipient practices that result in unnecessary cost

20  to the Medicaid program.

21         (b)  "Complaint" means an allegation that fraud, abuse,

22  or an overpayment has occurred.

23         (c)  "Fraud" means an intentional deception or

24  misrepresentation made by a person with the knowledge that the

25  deception results in unauthorized benefit to herself or

26  himself or another person.  The term includes any act that

27  constitutes fraud under applicable federal or state law.

28         (d)  "Medical necessity" or "medically necessary" means

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

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

31  alleviate, or preclude deterioration of a condition that

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

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

 3  accordance with generally accepted standards of medical

 4  practice. For purposes of determining Medicaid reimbursement,

 5  the agency is the final arbiter of medical necessity.

 6  Determinations of medical necessity must be made by a licensed

 7  physician employed by or under contract with the agency and

 8  must be based upon information available at the time the goods

 9  or services are provided.

10         (e)  "Overpayment" includes any amount that is not

11  authorized to be paid by the Medicaid program whether paid as

12  a result of inaccurate or improper cost reporting, improper

13  claiming, unacceptable practices, fraud, abuse, or mistake.

14         (f)  "Person" means any natural person, corporation,

15  partnership, association, clinic, group, or other entity,

16  whether or not such person is enrolled in the Medicaid program

17  or is a provider of health care.

18         (2)  The agency shall conduct, or cause to be conducted

19  by contract or otherwise, reviews, investigations, analyses,

20  audits, or any combination thereof, to determine possible

21  fraud, abuse, overpayment, or recipient neglect in the

22  Medicaid program and shall report the findings of any

23  overpayments in audit reports as appropriate.

24         (3)  The agency may conduct, or may contract for,

25  prepayment review of provider claims to ensure cost-effective

26  purchasing; to ensure that, billing by a provider to the

27  agency is in accordance with applicable provisions of all

28  Medicaid rules, regulations, handbooks, and policies and in

29  accordance with federal, state, and local law;, and to ensure

30  that appropriate provision of care is rendered to Medicaid

31  recipients.  Such prepayment reviews may be conducted as

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 1  determined appropriate by the agency, without any suspicion or

 2  allegation of fraud, abuse, or neglect, and may last for up to

 3  1 year. Unless the agency has reliable evidence of fraud,

 4  misrepresentation, abuse, or neglect, claims shall be

 5  adjudicated for denial or payment within 90 days after the

 6  date complete documentation is received by the agency for

 7  review. If there is reliable evidence of fraud,

 8  misrepresentation, abuse, or neglect, claims shall be

 9  adjudicated for denial or payment within 180 days after the

10  date complete documentation is received by the agency for

11  review.

12         (4)  Any suspected criminal violation identified by the

13  agency must be referred to the Medicaid Fraud Control Unit of

14  the Office of the Attorney General for investigation. The

15  agency and the Attorney General shall enter into a memorandum

16  of understanding, which must include, but need not be limited

17  to, a protocol for regularly sharing information and

18  coordinating casework.  The protocol must establish a

19  procedure for the referral by the agency of cases involving

20  suspected Medicaid fraud to the Medicaid Fraud Control Unit

21  for investigation, and the return to the agency of those cases

22  where investigation determines that administrative action by

23  the agency is appropriate. Offices of the Medicaid program

24  integrity program and the Medicaid Fraud Control Unit of the

25  Department of Legal Affairs, shall, to the extent possible, be

26  collocated. The agency and the Department of Legal Affairs

27  shall periodically conduct joint training and other joint

28  activities designed to increase communication and coordination

29  in recovering overpayments.

30         (5)  A Medicaid provider is subject to having goods and

31  services that are paid for by the Medicaid program reviewed by

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 1  an appropriate peer-review organization designated by the

 2  agency. The written findings of the applicable peer-review

 3  organization are admissible in any court or administrative

 4  proceeding as evidence of medical necessity or the lack

 5  thereof.

 6         (6)  Any notice required to be given to a provider

 7  under this section is presumed to be sufficient notice if sent

 8  to the address last shown on the provider enrollment file.  It

 9  is the responsibility of the provider to furnish and keep the

10  agency informed of the provider's current address. United

11  States Postal Service proof of mailing or certified or

12  registered mailing of such notice to the provider at the

13  address shown on the provider enrollment file constitutes

14  sufficient proof of notice. Any notice required to be given to

15  the agency by this section must be sent to the agency at an

16  address designated by rule.

17         (7)  When presenting a claim for payment under the

18  Medicaid program, a provider has an affirmative duty to

19  supervise the provision of, and be responsible for, goods and

20  services claimed to have been provided, to supervise and be

21  responsible for preparation and submission of the claim, and

22  to present a claim that is true and accurate and that is for

23  goods and services that:

24         (a)  Have actually been furnished to the recipient by

25  the provider prior to submitting the claim.

26         (b)  Are Medicaid-covered goods or services that are

27  medically necessary.

28         (c)  Are of a quality comparable to those furnished to

29  the general public by the provider's peers.

30         (d)  Have not been billed in whole or in part to a

31  recipient or a recipient's responsible party, except for such

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 1  copayments, coinsurance, or deductibles as are authorized by

 2  the agency.

 3         (e)  Are provided in accord with applicable provisions

 4  of all Medicaid rules, regulations, handbooks, and policies

 5  and in accordance with federal, state, and local law.

 6         (f)  Are documented by records made at the time the

 7  goods or services were provided, demonstrating the medical

 8  necessity for the goods or services rendered. Medicaid goods

 9  or services are excessive or not medically necessary unless

10  both the medical basis and the specific need for them are

11  fully and properly documented in the recipient's medical

12  record.

13  

14  The agency may deny payment or require repayment for goods or

15  services that are not presented as required in this

16  subsection.

17         (8)  The agency shall not reimburse any person or

18  entity for any prescription for medications, medical supplies,

19  or medical services if the prescription was written by a

20  physician or other prescribing practitioner who is not

21  enrolled in the Medicaid program. This section does not apply:

22         (a)  In instances involving bona fide emergency medical

23  conditions as determined by the agency;

24         (b)  To a provider of medical services to a patient in

25  a hospital emergency department;

26         (c)  To bono fide pro bono services by preapproved

27  non-Medicaid providers as determined by the agency;

28         (d)  To prescribing physicians who are board-certified

29  specialists treating Medicaid recipients referred for

30  treatment by a treating physician who is enrolled in the

31  Medicaid program; or

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 1         (e)  To prescriptions written for dually eligible

 2  Medicare beneficiaries by an authorized Medicare provider who

 3  is not enrolled in the Medicaid program.

 4         (9)(8)  A Medicaid provider shall retain medical,

 5  professional, financial, and business records pertaining to

 6  services and goods furnished to a Medicaid recipient and

 7  billed to Medicaid for a period of 5 years after the date of

 8  furnishing such services or goods. The agency may investigate,

 9  review, or analyze such records, which must be made available

10  during normal business hours. However, 24-hour notice must be

11  provided if patient treatment would be disrupted. The provider

12  is responsible for furnishing to the agency, and keeping the

13  agency informed of the location of, the provider's

14  Medicaid-related records.  The authority of the agency to

15  obtain Medicaid-related records from a provider is neither

16  curtailed nor limited during a period of litigation between

17  the agency and the provider.

18         (10)(9)  Payments for the services of billing agents or

19  persons participating in the preparation of a Medicaid claim

20  shall not be based on amounts for which they bill nor based on

21  the amount a provider receives from the Medicaid program.

22         (11)(10)  The agency may deny payment or require

23  repayment for inappropriate, medically unnecessary, or

24  excessive goods or services from the person furnishing them,

25  the person under whose supervision they were furnished, or the

26  person causing them to be furnished.

27         (12)(11)  The complaint and all information obtained

28  pursuant to an investigation of a Medicaid provider, or the

29  authorized representative or agent of a provider, relating to

30  an allegation of fraud, abuse, or neglect are confidential and

31  exempt from the provisions of s. 119.07(1):

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 1         (a)  Until the agency takes final agency action with

 2  respect to the provider and requires repayment of any

 3  overpayment, or imposes an administrative sanction;

 4         (b)  Until the Attorney General refers the case for

 5  criminal prosecution;

 6         (c)  Until 10 days after the complaint is determined

 7  without merit; or

 8         (d)  At all times if the complaint or information is

 9  otherwise protected by law.

10         (13)(12)  The agency may terminate participation of a

11  Medicaid provider in the Medicaid program and may seek civil

12  remedies or impose other administrative sanctions against a

13  Medicaid provider, if the provider has been:

14         (a)  Convicted of a criminal offense related to the

15  delivery of any health care goods or services, including the

16  performance of management or administrative functions relating

17  to the delivery of health care goods or services;

18         (b)  Convicted of a criminal offense under federal law

19  or the law of any state relating to the practice of the

20  provider's profession; or

21         (c)  Found by a court of competent jurisdiction to have

22  neglected or physically abused a patient in connection with

23  the delivery of health care goods or services.

24         (14)(13)  If the provider has been suspended or

25  terminated from participation in the Medicaid program or the

26  Medicare program by the Federal Government or any state, the

27  agency must immediately suspend or terminate, as appropriate,

28  the provider's participation in the Florida Medicaid program

29  for a period no less than that imposed by the Federal

30  Government or any other state, and may not enroll such

31  provider in the Florida Medicaid program while such foreign

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 1  suspension or termination remains in effect.  This sanction is

 2  in addition to all other remedies provided by law.

 3         (15)(14)  The agency may seek any remedy provided by

 4  law, including, but not limited to, the remedies provided in

 5  subsections (13)(12) and (16)(15) and s. 812.035, if:

 6         (a)  The provider's license has not been renewed, or

 7  has been revoked, suspended, or terminated, for cause, by the

 8  licensing agency of any state;

 9         (b)  The provider has failed to make available or has

10  refused access to Medicaid-related records to an auditor,

11  investigator, or other authorized employee or agent of the

12  agency, the Attorney General, a state attorney, or the Federal

13  Government;

14         (c)  The provider has not furnished or has failed to

15  make available such Medicaid-related records as the agency has

16  found necessary to determine whether Medicaid payments are or

17  were due and the amounts thereof;

18         (d)  The provider has failed to maintain medical

19  records made at the time of service, or prior to service if

20  prior authorization is required, demonstrating the necessity

21  and appropriateness of the goods or services rendered;

22         (e)  The provider is not in compliance with provisions

23  of Medicaid provider publications that have been adopted by

24  reference as rules in the Florida Administrative Code; with

25  provisions of state or federal laws, rules, or regulations;

26  with provisions of the provider agreement between the agency

27  and the provider; or with certifications found on claim forms

28  or on transmittal forms for electronically submitted claims

29  that are submitted by the provider or authorized

30  representative, as such provisions apply to the Medicaid

31  program;

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 1         (f)  The provider or person who ordered or prescribed

 2  the care, services, or supplies has furnished, or ordered the

 3  furnishing of, goods or services to a recipient which are

 4  inappropriate, unnecessary, excessive, or harmful to the

 5  recipient or are of inferior quality;

 6         (g)  The provider has demonstrated a pattern of failure

 7  to provide goods or services that are medically necessary;

 8         (h)  The provider or an authorized representative of

 9  the provider, or a person who ordered or prescribed the goods

10  or services, has submitted or caused to be submitted false or

11  a pattern of erroneous Medicaid claims that have resulted in

12  overpayments to a provider or that exceed those to which the

13  provider was entitled under the Medicaid program;

14         (i)  The provider or an authorized representative of

15  the provider, or a person who has ordered or prescribed the

16  goods or services, has submitted or caused to be submitted a

17  Medicaid provider enrollment application, a request for prior

18  authorization for Medicaid services, a drug exception request,

19  or a Medicaid cost report that contains materially false or

20  incorrect information;

21         (j)  The provider or an authorized representative of

22  the provider has collected from or billed a recipient or a

23  recipient's responsible party improperly for amounts that

24  should not have been so collected or billed by reason of the

25  provider's billing the Medicaid program for the same service;

26         (k)  The provider or an authorized representative of

27  the provider has included in a cost report costs that are not

28  allowable under a Florida Title XIX reimbursement plan, after

29  the provider or authorized representative had been advised in

30  an audit exit conference or audit report that the costs were

31  not allowable;

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 1         (l)  The provider is charged by information or

 2  indictment with fraudulent billing practices.  The sanction

 3  applied for this reason is limited to suspension of the

 4  provider's participation in the Medicaid program for the

 5  duration of the indictment unless the provider is found guilty

 6  pursuant to the information or indictment;

 7         (m)  The provider or a person who has ordered, or

 8  prescribed the goods or services is found liable for negligent

 9  practice resulting in death or injury to the provider's

10  patient;

11         (n)  The provider fails to demonstrate that it had

12  available during a specific audit or review period sufficient

13  quantities of goods, or sufficient time in the case of

14  services, to support the provider's billings to the Medicaid

15  program;

16         (o)  The provider has failed to comply with the notice

17  and reporting requirements of s. 409.907;

18         (p)  The agency has received reliable information of

19  patient abuse or neglect or of any act prohibited by s.

20  409.920; or

21         (q)  The provider has failed to comply with an

22  agreed-upon repayment schedule.

23         (16)(15)  The agency shall impose any of the following

24  sanctions or disincentives on a provider or a person for any

25  of the acts described in subsection (15)(14):

26         (a)  Suspension for a specific period of time of not

27  more than 1 year. Suspension shall preclude participation in

28  the Medicaid program, which includes any action that results

29  in a claim for payment to the Medicaid program as a result of

30  furnishing, supervising a person who is furnishing, or causing

31  a person to furnish goods or services.

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 1         (b)  Termination for a specific period of time of from

 2  more than 1 year to 20 years. Termination shall preclude

 3  participation in the Medicaid program, which includes any

 4  action that results in a claim for payment to the Medicaid

 5  program as a result of furnishing, supervising a person who is

 6  furnishing, or causing a person to furnish goods or services.

 7         (c)  Imposition of a fine of up to $5,000 for each

 8  violation.  Each day that an ongoing violation continues, such

 9  as refusing to furnish Medicaid-related records or refusing

10  access to records, is considered, for the purposes of this

11  section, to be a separate violation.  Each instance of

12  improper billing of a Medicaid recipient; each instance of

13  including an unallowable cost on a hospital or nursing home

14  Medicaid cost report after the provider or authorized

15  representative has been advised in an audit exit conference or

16  previous audit report of the cost unallowability; each

17  instance of furnishing a Medicaid recipient goods or

18  professional services that are inappropriate or of inferior

19  quality as determined by competent peer judgment; each

20  instance of knowingly submitting a materially false or

21  erroneous Medicaid provider enrollment application, request

22  for prior authorization for Medicaid services, drug exception

23  request, or cost report; each instance of inappropriate

24  prescribing of drugs for a Medicaid recipient as determined by

25  competent peer judgment; and each false or erroneous Medicaid

26  claim leading to an overpayment to a provider is considered,

27  for the purposes of this section, to be a separate violation.

28         (d)  Immediate suspension, if the agency has received

29  information of patient abuse or neglect or of any act

30  prohibited by s. 409.920. Upon suspension, the agency must

31  issue an immediate final order under s. 120.569(2)(n).

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 1         (e)  A fine, not to exceed $10,000, for a violation of

 2  paragraph (15)(i) (14)(i).

 3         (f)  Imposition of liens against provider assets,

 4  including, but not limited to, financial assets and real

 5  property, not to exceed the amount of fines or recoveries

 6  sought, upon entry of an order determining that such moneys

 7  are due or recoverable.

 8         (g)  Prepayment reviews of claims for a specified

 9  period of time.

10         (h)  Comprehensive followup reviews of providers every

11  6 months to ensure that they are billing Medicaid correctly.

12         (i)  Corrective-action plans that would remain in

13  effect for providers for up to 3 years and that would be

14  monitored by the agency every 6 months while in effect.

15         (j)  Other remedies as permitted by law to effect the

16  recovery of a fine or overpayment.

17  

18  The Secretary of Health Care Administration may make a

19  determination that imposition of a sanction or disincentive is

20  not in the best interest of the Medicaid program, in which

21  case a sanction or disincentive shall not be imposed.

22         (17)(16)  In determining the appropriate administrative

23  sanction to be applied, or the duration of any suspension or

24  termination, the agency shall consider:

25         (a)  The seriousness and extent of the violation or

26  violations.

27         (b)  Any prior history of violations by the provider

28  relating to the delivery of health care programs which

29  resulted in either a criminal conviction or in administrative

30  sanction or penalty.

31  

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 1         (c)  Evidence of continued violation within the

 2  provider's management control of Medicaid statutes, rules,

 3  regulations, or policies after written notification to the

 4  provider of improper practice or instance of violation.

 5         (d)  The effect, if any, on the quality of medical care

 6  provided to Medicaid recipients as a result of the acts of the

 7  provider.

 8         (e)  Any action by a licensing agency respecting the

 9  provider in any state in which the provider operates or has

10  operated.

11         (f)  The apparent impact on access by recipients to

12  Medicaid services if the provider is suspended or terminated,

13  in the best judgment of the agency.

14  

15  The agency shall document the basis for all sanctioning

16  actions and recommendations.

17         (18)(17)  The agency may take action to sanction,

18  suspend, or terminate a particular provider working for a

19  group provider, and may suspend or terminate Medicaid

20  participation at a specific location, rather than or in

21  addition to taking action against an entire group.

22         (19)(18)  The agency shall establish a process for

23  conducting followup reviews of a sampling of providers who

24  have a history of overpayment under the Medicaid program.

25  This process must consider the magnitude of previous fraud or

26  abuse and the potential effect of continued fraud or abuse on

27  Medicaid costs.

28         (20)(19)  In making a determination of overpayment to a

29  provider, the agency must use accepted and valid auditing,

30  accounting, analytical, statistical, or peer-review methods,

31  or combinations thereof. Appropriate statistical methods may

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

 2  population, parametric and nonparametric statistics, tests of

 3  hypotheses, and other generally accepted statistical methods.

 4  Appropriate analytical methods may include, but are not

 5  limited to, reviews to determine variances between the

 6  quantities of products that a provider had on hand and

 7  available to be purveyed to Medicaid recipients during the

 8  review period and the quantities of the same products paid for

 9  by the Medicaid program for the same period, taking into

10  appropriate consideration sales of the same products to

11  non-Medicaid customers during the same period.  In meeting its

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

13  agency may introduce the results of such statistical methods

14  as evidence of overpayment.

15         (21)(20)  When making a determination that an

16  overpayment has occurred, the agency shall prepare and issue

17  an audit report to the provider showing the calculation of

18  overpayments.

19         (22)(21)  The audit report, supported by agency work

20  papers, showing an overpayment to a provider constitutes

21  evidence of the overpayment. A provider may not present or

22  elicit testimony, either on direct examination or

23  cross-examination in any court or administrative proceeding,

24  regarding the purchase or acquisition by any means of drugs,

25  goods, or supplies; sales or divestment by any means of drugs,

26  goods, or supplies; or inventory of drugs, goods, or supplies,

27  unless such acquisition, sales, divestment, or inventory is

28  documented by written invoices, written inventory records, or

29  other competent written documentary evidence maintained in the

30  normal course of the provider's business. Notwithstanding the

31  applicable rules of discovery, all documentation that will be

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 1  offered as evidence at an administrative hearing on a Medicaid

 2  overpayment must be exchanged by all parties at least 14 days

 3  before the administrative hearing or must be excluded from

 4  consideration.

 5         (23)(22)(a)  In an audit or investigation of a

 6  violation committed by a provider which is conducted pursuant

 7  to this section, the agency is entitled to recover all

 8  investigative, legal, and expert witness costs if the agency's

 9  findings were not contested by the provider or, if contested,

10  the agency ultimately prevailed.

11         (b)  The agency has the burden of documenting the

12  costs, which include salaries and employee benefits and

13  out-of-pocket expenses. The amount of costs that may be

14  recovered must be reasonable in relation to the seriousness of

15  the violation and must be set taking into consideration the

16  financial resources, earning ability, and needs of the

17  provider, who has the burden of demonstrating such factors.

18         (c)  The provider may pay the costs over a period to be

19  determined by the agency if the agency determines that an

20  extreme hardship would result to the provider from immediate

21  full payment.  Any default in payment of costs may be

22  collected by any means authorized by law.

23         (24)(23)  If the agency imposes an administrative

24  sanction pursuant to subsection (13), subsection (14), or

25  subsection (15), except paragraphs (15)(e) and (o), under this

26  section upon any provider or other person who is regulated by

27  another state entity, the agency shall notify that other

28  entity of the imposition of the sanction.  Such notification

29  must include the provider's or person's name and license

30  number and the specific reasons for sanction.

31  

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 1         (25)(24)(a)  The agency may withhold Medicaid payments,

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

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

 4  withholding of payments involve fraud, willful

 5  misrepresentation, or abuse under the Medicaid program, or a

 6  crime committed while rendering goods or services to Medicaid

 7  recipients, pending completion of legal proceedings. If it is

 8  determined that fraud, willful misrepresentation, abuse, or a

 9  crime did not occur, the payments withheld must be paid to the

10  provider within 14 days after such determination with interest

11  at the rate of 10 percent a year. Any money withheld in

12  accordance with this paragraph shall be placed in a suspended

13  account, readily accessible to the agency, so that any payment

14  ultimately due the provider shall be made within 14 days.

15         (b)  The agency shall deny payment, or require

16  repayment, if the goods or services were furnished,

17  supervised, or caused to be furnished by a person who has been

18  suspended or terminated from the Medicaid program or Medicare

19  program by the Federal Government or any state.

20         (c)(b)  Overpayments owed to the agency bear interest

21  at the rate of 10 percent per year from the date of

22  determination of the overpayment by the agency, and payment

23  arrangements must be made at the conclusion of legal

24  proceedings. A provider who does not enter into or adhere to

25  an agreed-upon repayment schedule may be terminated by the

26  agency for nonpayment or partial payment.

27         (d)(c)  The agency, upon entry of a final agency order,

28  a judgment or order of a court of competent jurisdiction, or a

29  stipulation or settlement, may collect the moneys owed by all

30  means allowable by law, including, but not limited to,

31  notifying any fiscal intermediary of Medicare benefits that

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 1  the state has a superior right of payment.  Upon receipt of

 2  such written notification, the Medicare fiscal intermediary

 3  shall remit to the state the sum claimed.

 4         (26)(25)  The agency may impose administrative

 5  sanctions against a Medicaid recipient, or the agency may seek

 6  any other remedy provided by law, including, but not limited

 7  to, the remedies provided in s. 812.035, if the agency finds

 8  that a recipient has engaged in solicitation in violation of

 9  s. 409.920 or that the recipient has otherwise abused the

10  Medicaid program.

11         (27)(26)  When the Agency for Health Care

12  Administration has made a probable cause determination and

13  alleged that an overpayment to a Medicaid provider has

14  occurred, the agency, after notice to the provider, may:

15         (a)  Withhold, and continue to withhold during the

16  pendency of an administrative hearing pursuant to chapter 120,

17  any medical assistance reimbursement payments until such time

18  as the overpayment is recovered, unless within 30 days after

19  receiving notice thereof the provider:

20         1.  Makes repayment in full; or

21         2.  Establishes a repayment plan that is satisfactory

22  to the Agency for Health Care Administration.

23         (b)  Withhold, and continue to withhold during the

24  pendency of an administrative hearing pursuant to chapter 120,

25  medical assistance reimbursement payments if the terms of a

26  repayment plan are not adhered to by the provider.

27         (28)(27)  Venue for all Medicaid program integrity

28  overpayment cases shall lie in Leon County, at the discretion

29  of the agency.

30         (29)(28)  Notwithstanding other provisions of law, the

31  agency and the Medicaid Fraud Control Unit of the Department

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 1  of Legal Affairs may review a provider's Medicaid-related

 2  records in order to determine the total output of a provider's

 3  practice to reconcile quantities of goods or services billed

 4  to Medicaid with against quantities of goods or services used

 5  in the provider's total practice.

 6         (30)(29)  The agency may terminate a provider's

 7  participation in the Medicaid program if the provider fails to

 8  reimburse an overpayment that has been determined by final

 9  order, not subject to further appeal, within 35 days after the

10  date of the final order, unless the provider and the agency

11  have entered into a repayment agreement.

12         (31)(30)  If a provider requests an administrative

13  hearing pursuant to chapter 120, such hearing must be

14  conducted within 90 days following assignment of an

15  administrative law judge, absent exceptionally good cause

16  shown as determined by the administrative law judge or hearing

17  officer. Upon issuance of a final order, the outstanding

18  balance of the amount determined to constitute the overpayment

19  shall become due. If a provider fails to make payments in

20  full, fails to enter into a satisfactory repayment plan, or

21  fails to comply with the terms of a repayment plan or

22  settlement agreement, the agency may withhold medical

23  assistance reimbursement payments until the amount due is paid

24  in full.

25         (32)(31)  Duly authorized agents and employees of the

26  agency shall have the power to inspect, during normal business

27  hours, the records of any pharmacy, wholesale establishment,

28  or manufacturer, or any other place in which drugs and medical

29  supplies are manufactured, packed, packaged, made, stored,

30  sold, or kept for sale, for the purpose of verifying the

31  amount of drugs and medical supplies ordered, delivered, or

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 1  purchased by a provider. The agency shall provide at least 2

 2  business days' prior notice of any such inspection. The notice

 3  must identify the provider whose records will be inspected,

 4  and the inspection shall include only records specifically

 5  related to that provider.

 6         (33)  In accordance with federal law, Medicaid

 7  recipients convicted of a crime pursuant to 42 U.S.C. 1320a-7b

 8  may be limited, restricted, or suspended from Medicaid

 9  eligibility for a period not to exceed 1 year, as determined

10  by the agency head or designee.

11         (34)  To deter fraud and abuse in the Medicaid program,

12  the agency may limit the number of Schedule II and Schedule

13  III refill prescription claims submitted from a pharmacy

14  provider. The agency shall limit the allowable amount of

15  reimbursement of prescription refill claims for Schedule II

16  and Schedule III pharmaceuticals if the agency or the Medicaid

17  Fraud Control Unit determines that the specific prescription

18  refill was not requested by the Medicaid recipient or

19  authorized representative for whom the refill claim is

20  submitted or was not prescribed by the recipient's medical

21  provider or physician. Any such refill request must be

22  consistent with the original prescription.

23         Section 4.  Subsection (6) is added to section

24  409.9131, Florida Statutes, to read:

25         409.9131  Special provisions relating to integrity of

26  the Medicaid program.--

27         (6)  COST REPORTS.--For any Medicaid provider

28  submitting a cost report to the agency by any method, and in

29  addition to any other certification, the following statement

30  must immediately precede the dated signature of the provider's

31  administrator or chief financial officer on such cost report:

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 1         "I certify that I am familiar with the laws and

 2         regulations regarding the provision of health

 3         care services under the Florida Medicaid

 4         program, including the laws and regulations

 5         relating to claims for Medicaid reimbursements

 6         and payments, and that the services identified

 7         in this cost report were provided in compliance

 8         with such laws and regulations."

 9         Section 5.  Section 409.920, Florida Statutes, is

10  amended to read:

11         409.920  Medicaid provider fraud.--

12         (1)  For the purposes of this section, the term:

13         (a)  "Agency" means the Agency for Health Care

14  Administration.

15         (b)  "Fiscal agent" means any individual, firm,

16  corporation, partnership, organization, or other legal entity

17  that has contracted with the agency to receive, process, and

18  adjudicate claims under the Medicaid program.

19         (c)  "Item or service" includes:

20         1.  Any particular item, device, medical supply, or

21  service claimed to have been provided to a recipient and

22  listed in an itemized claim for payment; or

23         2.  In the case of a claim based on costs, any entry in

24  the cost report, books of account, or other documents

25  supporting such claim.

26         (d)  "Knowingly" means done by a person who is aware or

27  should be aware of the nature of his or her conduct and that

28  his or her conduct is substantially certain to cause the

29  intended result.

30         (2)  It is unlawful to:

31  

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 1         (a)  Knowingly make, cause to be made, or aid and abet

 2  in the making of any false statement or false representation

 3  of a material fact, by commission or omission, in any claim

 4  submitted to the agency or its fiscal agent for payment.

 5         (b)  Knowingly make, cause to be made, or aid and abet

 6  in the making of a claim for items or services that are not

 7  authorized to be reimbursed by the Medicaid program.

 8         (c)  Knowingly charge, solicit, accept, or receive

 9  anything of value, other than an authorized copayment from a

10  Medicaid recipient, from any source in addition to the amount

11  legally payable for an item or service provided to a Medicaid

12  recipient under the Medicaid program or knowingly fail to

13  credit the agency or its fiscal agent for any payment received

14  from a third-party source.

15         (d)  Knowingly make or in any way cause to be made any

16  false statement or false representation of a material fact, by

17  commission or omission, in any document containing items of

18  income and expense that is or may be used by the agency to

19  determine a general or specific rate of payment for an item or

20  service provided by a provider.

21         (e)  Knowingly solicit, offer, pay, or receive any

22  remuneration, including any kickback, bribe, or rebate,

23  directly or indirectly, overtly or covertly, in cash or in

24  kind, in return for referring an individual to a person for

25  the furnishing or arranging for the furnishing of any item or

26  service for which payment may be made, in whole or in part,

27  under the Medicaid program, or in return for obtaining,

28  purchasing, leasing, ordering, or arranging for or

29  recommending, obtaining, purchasing, leasing, or ordering any

30  goods, facility, item, or service, for which payment may be

31  made, in whole or in part, under the Medicaid program.

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 1         (f)  Knowingly submit false or misleading information

 2  or statements to the Medicaid program for the purpose of being

 3  accepted as a Medicaid provider.

 4         (g)  Knowingly use or endeavor to use a Medicaid

 5  provider's identification number or a Medicaid recipient's

 6  identification number to make, cause to be made, or aid and

 7  abet in the making of a claim for items or services that are

 8  not authorized to be reimbursed by the Medicaid program.

 9  

10  A person who violates this subsection commits a felony of the

11  third degree, punishable as provided in s. 775.082, s.

12  775.083, or s. 775.084.

13         (3)  The repayment of Medicaid payments wrongfully

14  obtained, or the offer or endeavor to repay Medicaid funds

15  wrongfully obtained, does not constitute a defense to, or a

16  ground for dismissal of, criminal charges brought under this

17  section.

18         (4)  Property "paid for" includes all property

19  furnished to or intended to be furnished to any recipient of

20  benefits under the Medicaid program, regardless of whether

21  reimbursement is ever actually made by the program.

22         (5)(4)  All records in the custody of the agency or its

23  fiscal agent which relate to Medicaid provider fraud are

24  business records within the meaning of s. 90.803(6).

25         (6)(5)  Proof that a claim was submitted to the agency

26  or its fiscal agent which contained a false statement or a

27  false representation of a material fact, by commission or

28  omission, unless satisfactorily explained, gives rise to an

29  inference that the person whose signature appears as the

30  provider's authorizing signature on the claim form, or whose

31  signature appears on an agency electronic claim submission

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 1  agreement submitted for claims made to the fiscal agent by

 2  electronic means, had knowledge of the false statement or

 3  false representation.  This subsection applies whether the

 4  signature appears on the claim form or the electronic claim

 5  submission agreement by means of handwriting, typewriting,

 6  facsimile signature stamp, computer impulse, initials, or

 7  otherwise.

 8         (7)(6)  Proof of submission to the agency or its fiscal

 9  agent of a document containing items of income and expense,

10  which document is used or that may be used by the agency or

11  its fiscal agent to determine a general or specific rate of

12  payment and which document contains a false statement or a

13  false representation of a material fact, by commission or

14  omission, unless satisfactorily explained, gives rise to the

15  inference that the person who signed the certification of the

16  document had knowledge of the false statement or

17  representation.  This subsection applies whether the signature

18  appears on the document by means of handwriting, typewriting,

19  facsimile signature stamp, electronic transmission, initials,

20  or otherwise.

21         (8)(7)  The Attorney General shall conduct a statewide

22  program of Medicaid fraud control. To accomplish this purpose,

23  the Attorney General shall:

24         (a)  Investigate the possible criminal violation of any

25  applicable state law pertaining to fraud in the administration

26  of the Medicaid program, in the provision of medical

27  assistance, or in the activities of providers of health care

28  under the Medicaid program.

29         (b)  Investigate the alleged abuse or neglect of

30  patients in health care facilities receiving payments under

31  the Medicaid program, in coordination with the agency.

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 1         (c)  Investigate the alleged misappropriation of

 2  patients' private funds in health care facilities receiving

 3  payments under the Medicaid program.

 4         (d)  Refer to the Office of Statewide Prosecution or

 5  the appropriate state attorney all violations indicating a

 6  substantial potential for criminal prosecution.

 7         (e)  Refer to the agency all suspected abusive

 8  activities not of a criminal or fraudulent nature.

 9         (f)  Safeguard the privacy rights of all individuals

10  and provide safeguards to prevent the use of patient medical

11  records for any reason beyond the scope of a specific

12  investigation for fraud or abuse, or both, without the

13  patient's written consent.

14         (g)  Publicize to state employees and the public the

15  ability of persons to bring suit under the provisions of the

16  Florida False Claims Act and the potential for the persons

17  bringing a civil action under the Florida False Claims Act to

18  obtain a monetary award.

19         (9)(8)  In carrying out the duties and responsibilities

20  under this section, the Attorney General may:

21         (a)  Enter upon the premises of any health care

22  provider, excluding a physician, participating in the Medicaid

23  program to examine all accounts and records that may, in any

24  manner, be relevant in determining the existence of fraud in

25  the Medicaid program, to investigate alleged abuse or neglect

26  of patients, or to investigate alleged misappropriation of

27  patients' private funds. A participating physician is required

28  to make available any accounts or records that may, in any

29  manner, be relevant in determining the existence of fraud in

30  the Medicaid program. The accounts or records of a

31  non-Medicaid patient may not be reviewed by, or turned over

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 1  to, the Attorney General without the patient's written

 2  consent.

 3         (b)  Subpoena witnesses or materials, including medical

 4  records relating to Medicaid recipients, within or outside the

 5  state and, through any duly designated employee, administer

 6  oaths and affirmations and collect evidence for possible use

 7  in either civil or criminal judicial proceedings.

 8         (c)  Request and receive the assistance of any state

 9  attorney or law enforcement agency in the investigation and

10  prosecution of any violation of this section.

11         (d)  Seek any civil remedy provided by law, including,

12  but not limited to, the remedies provided in ss. 68.081-68.092

13  and 812.035 and this chapter.

14         (e)  Refer to the agency for collection each instance

15  of overpayment to a provider of health care under the Medicaid

16  program which is discovered during the course of an

17  investigation.

18         Section 6.  Section 409.9201, Florida Statutes, is

19  created to read:

20         409.9201  Medicaid fraud.--

21         (1)  As used in this section, the term:

22         (a)  "Legend drug" means any drug, including, but not

23  limited to, finished dosage forms or active ingredients that

24  are subject to, defined by, or described by s. 503(b) of the

25  Federal Food, Drug, and Cosmetic Act or by s. 465.003(8), s.

26  499.007(12), or s. 499.0122(1)(b) or (c).

27         (b)  "Value" means the amount billed to the Medicaid

28  program for the property dispensed or the market value of a

29  legend drug or goods or services at the time and place of the

30  offense. If the market value cannot be determined, the term

31  

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 1  means the replacement cost of the legend drug or goods or

 2  services within a reasonable time after the offense.

 3         (2)  Any person who knowingly sells, who knowingly

 4  attempts or conspires to sell, or who knowingly causes any

 5  other person to sell or attempt or conspire to sell a legend

 6  drug that was paid for by the Medicaid program commits a

 7  felony.

 8         (a)  If the value of the legend drug involved is less

 9  than $20,000, the crime is a felony of the third degree,

10  punishable as provided in s. 775.082, s. 775.083, or s.

11  775.084.

12         (b)  If the value of the legend drug involved is

13  $20,000 or more but less than $100,000, the crime is a felony

14  of the second degree, punishable as provided in s. 775.082, s.

15  775.083, or s. 775.084.

16         (c)  If the value of the legend drug involved is

17  $100,000 or more, the crime is a felony of the first degree,

18  punishable as provided in s. 775.082, s. 775.083, or s.

19  775.084.

20         (3)  Any person who knowingly purchases, or who

21  knowingly attempts or conspires to purchase, a legend drug

22  that was paid for by the Medicaid program and intended for use

23  by another person commits a felony.

24         (a)  If the value of the legend drug is less than

25  $20,000, the crime is a felony of the third degree, punishable

26  as provided in s. 775.082, s. 775.083, or s. 775.084.

27         (b)  If the value of the legend drug is $20,000 or more

28  but less than $100,000, the crime is a felony of the second

29  degree, punishable as provided in s. 775.082, s. 775.083, or

30  s. 775.084.

31  

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 1         (c)  If the value of the legend drug is $100,000 or

 2  more, the crime is a felony of the first degree, punishable as

 3  provided in s. 775.082, s. 775.083, or s. 775.084.

 4         (4)  Any person who knowingly makes or knowingly causes

 5  to be made, or who attempts or conspires to make, any false

 6  statement or representation to any person for the purpose of

 7  obtaining goods or services from the Medicaid program commits

 8  a felony.

 9         (a)  If the value of the goods or services is less than

10  $20,000, the crime is a felony of the third degree, punishable

11  as provided in s. 775.082, s. 775.083, or s. 775.084.

12         (b)  If the value of the goods or services is $20,000

13  or more but less than $100,000, the crime is a felony of the

14  second degree, punishable as provided in s. 775.082, s.

15  775.083, or s. 775.084.

16         (c)  If the value of the goods or services involved is

17  $100,000 or more, the crime is a felony of the first degree,

18  punishable as provided in s. 775.082, s. 775.083, or s.

19  775.084.

20  

21  The value of individual items of the legend drugs or goods or

22  services involved in distinct transactions committed during a

23  single scheme or course of conduct, whether involving a single

24  person or several persons, may be aggregated when determining

25  the punishment for the offense.

26         Section 7.  Paragraph (ff) is added to subsection (1)

27  of section 456.072, Florida Statutes, to read:

28         456.072  Grounds for discipline; penalties;

29  enforcement.--

30  

31  

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 1         (1)  The following acts shall constitute grounds for

 2  which the disciplinary actions specified in subsection (2) may

 3  be taken:

 4         (ff)  Engaging in a pattern of practice when

 5  prescribing medicinal drugs or controlled substances which

 6  demonstrates a lack of reasonable skill or safety to patients,

 7  a violation of any provision of this chapter, a violation of

 8  the applicable practice act, or a violation of any rules

 9  adopted pursuant to this chapter or the applicable practice

10  act of the prescribing practitioner. Notwithstanding s.

11  456.073(13), the department may initiate an investigation and

12  establish such a pattern from billing records, data, or any

13  other information obtained by the department.

14         Section 8.  Subsection (1) of section 465.188, Florida

15  Statutes, is amended to read:

16         465.188  Medicaid audits of pharmacies.--

17         (1)  Notwithstanding any other law, when an audit of

18  the Medicaid-related records of a pharmacy licensed under

19  chapter 465 is conducted, such audit must be conducted as

20  provided in this section.

21         (a)  The agency conducting the audit must give the

22  pharmacist at least 1 week's prior notice of the audit.

23         (a)(b)  An audit must be conducted by a pharmacist

24  licensed in this state.

25         (b)(c)  Any clerical or recordkeeping error, such as a

26  typographical error, scrivener's error, or computer error

27  regarding a document or record required under the Medicaid

28  program does not constitute a willful violation and is not

29  subject to criminal penalties without proof of intent to

30  commit fraud.

31  

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 1         (c)(d)  A pharmacist may use the physician's record or

 2  other order for drugs or medicinal supplies written or

 3  transmitted by any means of communication for purposes of

 4  validating the pharmacy record with respect to orders or

 5  refills of a legend or narcotic drug.

 6         (d)(e)  A finding of an overpayment or underpayment

 7  must be based on the actual overpayment or underpayment and

 8  may not be a projection based on the number of patients served

 9  having a similar diagnosis or on the number of similar orders

10  or refills for similar drugs.

11         (e)(f)  Each pharmacy shall be audited under the same

12  standards and parameters.

13         (f)(g)  A pharmacist must be allowed at least 10 days

14  in which to produce documentation to address any discrepancy

15  found during an audit.

16         (g)(h)  The period covered by an audit may not exceed 1

17  calendar year.

18         (h)(i)  An audit may not be scheduled during the first

19  5 days of any month due to the high volume of prescriptions

20  filled during that time.

21         (i)(j)  The audit report must be delivered to the

22  pharmacist within 90 days after conclusion of the audit. A

23  final audit report shall be delivered to the pharmacist within

24  6 months after receipt of the preliminary audit report or

25  final appeal, as provided for in subsection (2), whichever is

26  later.

27         (j)  The audit criteria set forth in this section

28  applies only to audits of claims submitted for payment

29  subsequent to July 11, 2003.

30         Section 9.  Section 812.0191, Florida Statutes, is

31  created to read:

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 1         812.0191  Dealing in property paid for in whole or in

 2  part by the Medicaid program.--

 3         (1)  As used in this section, the term:

 4         (a)  "Property paid for in whole or in part by the

 5  Medicaid program" means any devices, goods, services, drugs,

 6  or any other property furnished or intended to be furnished to

 7  a recipient of benefits under the Medicaid program.

 8         (b)  "Value" means the amount billed to Medicaid for

 9  the property dispensed or the market value of the devices,

10  goods, services, or drugs at the time and place of the

11  offense. If the market value cannot be determined, the term

12  means the replacement cost of the devices, goods, services, or

13  drugs within a reasonable time after the offense.

14         (2)  Any person who traffics in, or endeavors to

15  traffic in, property that he or she knows or should have known

16  was paid for in whole or in part by the Medicaid program

17  commits a felony.

18         (a)  If the value of the property involved is less than

19  $20,000, the crime is a felony of the third degree, punishable

20  as provided in s. 775.082, s. 775.083, or s. 775.084.

21         (b)  If the value of the property involved is $20,000

22  or more but less than $100,000, the crime is a felony of the

23  second degree, punishable as provided in s. 775.082, s.

24  775.083, or s. 775.084.

25         (c)  If the value of the property involved is $100,000

26  or more, the crime is a felony of the first degree, punishable

27  as provided in s. 775.082, s. 775.083, or s. 775.084.

28  

29  The value of individual items of the devices, goods, services,

30  drugs, or other property involved in distinct transactions

31  committed during a single scheme or course of conduct, whether

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 1  involving a single person or several persons, may be

 2  aggregated when determining the punishment for the offense.

 3         (3)  Any person who knowingly initiates, organizes,

 4  plans, finances, directs, manages, or supervises the obtaining

 5  of property paid for in whole or in part by the Medicaid

 6  program and who traffics in, or endeavors to traffic in, such

 7  property commits a felony of the first degree, punishable as

 8  provided in s. 775.082, s. 775.083, or s. 775.084.

 9         Section 10.  Paragraph (a) of subsection (1) of section

10  895.02, Florida Statutes, is amended to read:

11         895.02  Definitions.--As used in ss. 895.01-895.08, the

12  term:

13         (1)  "Racketeering activity" means to commit, to

14  attempt to commit, to conspire to commit, or to solicit,

15  coerce, or intimidate another person to commit:

16         (a)  Any crime which is chargeable by indictment or

17  information under the following provisions of the Florida

18  Statutes:

19         1.  Section 210.18, relating to evasion of payment of

20  cigarette taxes.

21         2.  Section 403.727(3)(b), relating to environmental

22  control.

23         3.  Section 414.39, relating to public assistance

24  fraud.

25         4.  Section 409.920, relating to Medicaid provider

26  fraud and s. 409.9201, relating to Medicaid recipient fraud.

27         5.  Section 440.105 or s. 440.106, relating to workers'

28  compensation.

29         6.  Sections 499.0051, 499.0052, 499.0053, 499.0054,

30  and 499.0691, relating to crimes involving contraband and

31  adulterated drugs.

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 1         7.  Part IV of chapter 501, relating to telemarketing.

 2         8.  Chapter 517, relating to sale of securities and

 3  investor protection.

 4         9.  Section 550.235, s. 550.3551, or s. 550.3605,

 5  relating to dogracing and horseracing.

 6         10.  Chapter 550, relating to jai alai frontons.

 7         11.  Chapter 552, relating to the manufacture,

 8  distribution, and use of explosives.

 9         12.  Chapter 560, relating to money transmitters, if

10  the violation is punishable as a felony.

11         13.  Chapter 562, relating to beverage law enforcement.

12         14.  Section 624.401, relating to transacting insurance

13  without a certificate of authority, s. 624.437(4)(c)1.,

14  relating to operating an unauthorized multiple-employer

15  welfare arrangement, or s. 626.902(1)(b), relating to

16  representing or aiding an unauthorized insurer.

17         15.  Section 655.50, relating to reports of currency

18  transactions, when such violation is punishable as a felony.

19         16.  Chapter 687, relating to interest and usurious

20  practices.

21         17.  Section 721.08, s. 721.09, or s. 721.13, relating

22  to real estate timeshare plans.

23         18.  Chapter 782, relating to homicide.

24         19.  Chapter 784, relating to assault and battery.

25         20.  Chapter 787, relating to kidnapping.

26         21.  Chapter 790, relating to weapons and firearms.

27         22.  Section 796.03, s. 796.04, s.  796.05, or s.

28  796.07, relating to prostitution.

29         23.  Chapter 806, relating to arson.

30         24.  Section 810.02(2)(c), relating to specified

31  burglary of a dwelling or structure.

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 1         25.  Chapter 812, relating to theft, robbery, and

 2  related crimes.

 3         26.  Chapter 815, relating to computer-related crimes.

 4         27.  Chapter 817, relating to fraudulent practices,

 5  false pretenses, fraud generally, and credit card crimes.

 6         28.  Chapter 825, relating to abuse, neglect, or

 7  exploitation of an elderly person or disabled adult.

 8         29.  Section 827.071, relating to commercial sexual

 9  exploitation of children.

10         30.  Chapter 831, relating to forgery and

11  counterfeiting.

12         31.  Chapter 832, relating to issuance of worthless

13  checks and drafts.

14         32.  Section 836.05, relating to extortion.

15         33.  Chapter 837, relating to perjury.

16         34.  Chapter 838, relating to bribery and misuse of

17  public office.

18         35.  Chapter 843, relating to obstruction of justice.

19         36.  Section 847.011, s. 847.012, s. 847.013, s.

20  847.06, or s. 847.07, relating to obscene literature and

21  profanity.

22         37.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

23  or s. 849.25, relating to gambling.

24         38.  Chapter 874, relating to criminal street gangs.

25         39.  Chapter 893, relating to drug abuse prevention and

26  control.

27         40.  Chapter 896, relating to offenses related to

28  financial transactions.

29         41.  Sections 914.22 and 914.23, relating to tampering

30  with a witness, victim, or informant, and retaliation against

31  a witness, victim, or informant.

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 1         42.  Sections 918.12 and 918.13, relating to tampering

 2  with jurors and evidence.

 3         Section 11.  Section 905.34, Florida Statutes, is

 4  amended to read:

 5         905.34  Powers and duties; law applicable.--The

 6  jurisdiction of a statewide grand jury impaneled under this

 7  chapter shall extend throughout the state. The subject matter

 8  jurisdiction of the statewide grand jury shall be limited to

 9  the offenses of:

10         (1)  Bribery, burglary, carjacking, home-invasion

11  robbery, criminal usury, extortion, gambling, kidnapping,

12  larceny, murder, prostitution, perjury, and robbery;

13         (2)  Crimes involving narcotic or other dangerous

14  drugs;

15         (3)  Any violation of the provisions of the Florida

16  RICO (Racketeer Influenced and Corrupt Organization) Act,

17  including any offense listed in the definition of racketeering

18  activity in s. 895.02(1)(a), providing such listed offense is

19  investigated in connection with a violation of s. 895.03 and

20  is charged in a separate count of an information or indictment

21  containing a count charging a violation of s. 895.03, the

22  prosecution of which listed offense may continue independently

23  if the prosecution of the violation of s. 895.03 is terminated

24  for any reason;

25         (4)  Any violation of the provisions of the Florida

26  Anti-Fencing Act;

27         (5)  Any violation of the provisions of the Florida

28  Antitrust Act of 1980, as amended;

29         (6)  Any violation of the provisions of chapter 815;

30         (7)  Any crime involving, or resulting in, fraud or

31  deceit upon any person;

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 1         (8)  Any violation of s. 847.0135, s. 847.0137, or s.

 2  847.0138 relating to computer pornography and child

 3  exploitation prevention, or any offense related to a violation

 4  of s. 847.0135, s. 847.0137, or s. 847.0138; or

 5         (9)  Any criminal violation of part I of chapter 499;

 6  or

 7         (10)  Any criminal violation of s. 409.920 or s.

 8  409.9201;

 9  

10  or any attempt, solicitation, or conspiracy to commit any

11  violation of the crimes specifically enumerated above, when

12  any such offense is occurring, or has occurred, in two or more

13  judicial circuits as part of a related transaction or when any

14  such offense is connected with an organized criminal

15  conspiracy affecting two or more judicial circuits.  The

16  statewide grand jury may return indictments and presentments

17  irrespective of the county or judicial circuit where the

18  offense is committed or triable.  If an indictment is

19  returned, it shall be certified and transferred for trial to

20  the county where the offense was committed.  The powers and

21  duties of, and law applicable to, county grand juries shall

22  apply to a statewide grand jury except when such powers,

23  duties, and law are inconsistent with the provisions of ss.

24  905.31-905.40.

25         Section 12.  This act shall take effect July 1, 2004.

26  

27  

28  

29  

30  

31  

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Adds certain criminal violations to the list of specified
      crimes within the jurisdiction of the Office of Statewide
 4    Prosecution. Authorizes the Agency for Health Care
      Administration to require a confirmation or second
 5    physician's opinion of the correct diagnosis before
      authorizing payment for medical treatment. Authorizes the
 6    agency to order certain categories of Medicaid recipients
      to enroll in drug-therapy-management or
 7    disease-management programs. Provides that Medicaid
      recipients may be mandated to participate in a provider
 8    lock-in program. Provides specified conditions for
      providers to meet in order to submit claims to the
 9    Medicaid program and provides that claims may be denied
      if not properly submitted. Provides that the agency may
10    seek any remedy under law if a provider submits specified
      false or erroneous claims. Requires the agency to report
11    administrative sanctions to licensing authorities for
      certain violations. Permits the agency to withhold
12    payment to a provider under certain circumstances.
      Restricts or suspends Medicaid eligibility of recipients
13    convicted of certain crimes or offenses. Authorizes the
      agency to limit the number of certain types of
14    prescription claims submitted by pharmacy providers.
      Makes it unlawful to knowingly use a Medicaid provider's
15    or a Medicaid recipient's identification number to submit
      false claims. Provides that a person who sells legend
16    drugs obtained through the Medicaid program commits a
      felony. Provides that a health care practitioner who
17    prescribes medicinal drugs or controlled substances may
      be subject to discipline by the Department of Health or
18    the appropriate board having jurisdiction over the health
      care practitioner. Authorizes the Department of Health to
19    initiate a disciplinary investigation of prescribing
      practitioners under specified circumstances. Provides
20    that a person who traffics in property paid for in whole
      or in part by the Medicaid program commits a felony. (See
21    bill for details.)

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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