Florida Senate - 2013 PROPOSED COMMITTEE SUBSTITUTE
Bill No. CS for SB 844
Barcode 873636
576-04562-13
Proposed Committee Substitute by the Committee on Appropriations
(Appropriations Subcommittee on Health and Human Services)
1 A bill to be entitled
2 An act relating to Medicaid; amending s. 409.907,
3 F.S.; increasing the number of years a provider must
4 keep records; adding an additional provision relating
5 to a change in principal that must be included in a
6 Medicaid provider agreement with the Agency for Health
7 Care Administration; adding the definitions of the
8 terms “administrative fines” and “outstanding
9 overpayment”; revising provisions relating to the
10 agency’s onsite inspection responsibilities; revising
11 provisions relating to who is subject to background
12 screening; authorizing the agency to enroll a provider
13 who is licensed in this state and provides diagnostic
14 services through telecommunications technology;
15 amending s. 409.910, F.S.; revising provisions
16 relating to responsibility for Medicaid payments in
17 settlement proceedings; providing procedures for a
18 recipient to contest the amount payable to the agency;
19 amending s. 409.913, F.S.; increasing the number of
20 years a provider must keep records; revising
21 provisions specifying grounds for terminating a
22 provider from the program, for seeking certain
23 remedies for violations, and for imposing certain
24 sanctions; providing a limitation on the information
25 the agency may consider when making a determination of
26 overpayment; specifying the type of records a provider
27 must present to contest an overpayment; deleting the
28 requirement that the agency place payments withheld
29 from a provider in a suspended account and revising
30 when a provider must reimburse overpayments; revising
31 venue requirements; adding provisions relating to the
32 payment of fines; amending s. 409.920, F.S.;
33 clarifying provisions relating to immunity from
34 liability for persons who provide information about
35 Medicaid fraud; amending s. 624.351, F.S.; providing
36 for the expiration of the Medicaid and Public
37 Assistance Fraud Strike Force; amending s. 624.352,
38 F.S.; providing for the expiration of provisions
39 relating to “Strike Force” agreements; providing an
40 effective date.
41
42 Be It Enacted by the Legislature of the State of Florida:
43
44 Section 1. Paragraph (c) of subsection (3) of section
45 409.907, Florida Statutes, is amended, paragraph (k) is added to
46 that subsection, and subsections (6) through (9) of that section
47 are amended, to read:
48 409.907 Medicaid provider agreements.—The agency may make
49 payments for medical assistance and related services rendered to
50 Medicaid recipients only to an individual or entity who has a
51 provider agreement in effect with the agency, who is performing
52 services or supplying goods in accordance with federal, state,
53 And local law, and who agrees that no person shall, on the
54 grounds of handicap, race, color, or national origin, or for any
55 other reason, be subjected to discrimination under any program
56 or activity for which the provider receives payment from the
57 agency.
58 (3) The provider agreement developed by the agency, in
59 addition to the requirements specified in subsections (1) and
60 (2), shall require the provider to:
61 (c) Retain all medical and Medicaid-related records for 6 a
62 period of 5 years to satisfy all necessary inquiries by the
63 agency.
64 (k) Report a change in any principal of the provider,
65 including any officer, director, agent, managing employee, or
66 affiliated person, or any partner or shareholder who has an
67 ownership interest equal to 5 percent or more in the provider,
68 to the agency in writing within 30 days after the change occurs.
69 For a hospital licensed under chapter 395 or a nursing home
70 licensed under part II of chapter 400, a principal of the
71 provider is one who meets the definition of a controlling
72 interest under s. 408.803.
73 (6) A Medicaid provider agreement may be revoked, at the
74 option of the agency, due to as the result of a change of
75 ownership of any facility, association, partnership, or other
76 entity named as the provider in the provider agreement.
77 (a) If there is In the event of a change of ownership, the
78 transferor remains liable for all outstanding overpayments,
79 administrative fines, and any other moneys owed to the agency
80 before the effective date of the change of ownership. In
81 addition to the continuing liability of the transferor, The
82 transferee is also liable to the agency for all outstanding
83 overpayments identified by the agency on or before the effective
84 date of the change of ownership. For purposes of this
85 subsection, the term “outstanding overpayment” includes any
86 amount identified in a preliminary audit report issued to the
87 transferor by the agency on or before the effective date of the
88 change of ownership. In the event of a change of ownership for a
89 skilled nursing facility or intermediate care facility, the
90 Medicaid provider agreement shall be assigned to the transferee
91 if the transferee meets all other Medicaid provider
92 qualifications. In the event of a change of ownership involving
93 a skilled nursing facility licensed under part II of chapter
94 400, liability for all outstanding overpayments, administrative
95 fines, and any moneys owed to the agency before the effective
96 date of the change of ownership shall be determined in
97 accordance with s. 400.179.
98 (b) At least 60 days before the anticipated date of the
99 change of ownership, the transferor must shall notify the agency
100 of the intended change of ownership and the transferee must
101 shall submit to the agency a Medicaid provider enrollment
102 application. If a change of ownership occurs without compliance
103 with the notice requirements of this subsection, the transferor
104 and transferee are shall be jointly and severally liable for all
105 overpayments, administrative fines, and other moneys due to the
106 agency, regardless of whether the agency identified the
107 overpayments, administrative fines, or other moneys before or
108 after the effective date of the change of ownership. The agency
109 may not approve a transferee’s Medicaid provider enrollment
110 application if the transferee or transferor has not paid or
111 agreed in writing to a payment plan for all outstanding
112 overpayments, administrative fines, and other moneys due to the
113 agency. This subsection does not preclude the agency from
114 seeking any other legal or equitable remedies available to the
115 agency for the recovery of moneys owed to the Medicaid program.
116 In the event of a change of ownership involving a skilled
117 nursing facility licensed under part II of chapter 400,
118 liability for all outstanding overpayments, administrative
119 fines, and any moneys owed to the agency before the effective
120 date of the change of ownership shall be determined in
121 accordance with s. 400.179 if the Medicaid provider enrollment
122 application for change of ownership is submitted before the
123 change of ownership.
124 (c) As used in this subsection, the term:
125 1. “Administrative fines” includes any amount identified in
126 a notice of a monetary penalty or fine which has been issued by
127 the agency or other regulatory or licensing agency that governs
128 the provider.
129 2. “Outstanding overpayment” includes any amount identified
130 in a preliminary audit report issued to the transferor by the
131 agency on or before the effective date of a change of ownership.
132 (7) The agency may require, As a condition of participating
133 in the Medicaid program and before entering into the provider
134 agreement, the agency may require that the provider to submit
135 information, in an initial and any required renewal
136 applications, concerning the professional, business, and
137 personal background of the provider and permit an onsite
138 inspection of the provider’s service location by agency staff or
139 other personnel designated by the agency to perform this
140 function. Before entering into a provider agreement, the agency
141 may shall perform an a random onsite inspection, within 60 days
142 after receipt of a fully complete new provider’s application, of
143 the provider’s service location prior to making its first
144 payment to the provider for Medicaid services to determine the
145 applicant’s ability to provide the services in compliance with
146 the Medicaid program and professional regulations that the
147 applicant is proposing to provide for Medicaid reimbursement.
148 The agency is not required to perform an onsite inspection of a
149 provider or program that is licensed by the agency, that
150 provides services under waiver programs for home and community-
151 based services, or that is licensed as a medical foster home by
152 the Department of Children and Family Services. As a continuing
153 condition of participation in the Medicaid program, a provider
154 must shall immediately notify the agency of any current or
155 pending bankruptcy filing. Before entering into the provider
156 agreement, or as a condition of continuing participation in the
157 Medicaid program, the agency may also require that Medicaid
158 providers that are reimbursed on a fee-for-services basis or fee
159 schedule basis that which is not cost-based to, post a surety
160 bond not to exceed $50,000 or the total amount billed by the
161 provider to the program during the current or most recent
162 calendar year, whichever is greater. For new providers, the
163 amount of the surety bond shall be determined by the agency
164 based on the provider’s estimate of its first year’s billing. If
165 the provider’s billing during the first year exceeds the bond
166 amount, the agency may require the provider to acquire an
167 additional bond equal to the actual billing level of the
168 provider. A provider’s bond need shall not exceed $50,000 if a
169 physician or group of physicians licensed under chapter 458,
170 chapter 459, or chapter 460 has a 50 percent or greater
171 ownership interest in the provider or if the provider is an
172 assisted living facility licensed under chapter 429. The bonds
173 permitted by this section are in addition to the bonds
174 referenced in s. 400.179(2)(d). If the provider is a
175 corporation, partnership, association, or other entity, the
176 agency may require the provider to submit information concerning
177 the background of that entity and of any principal of the
178 entity, including any partner or shareholder having an ownership
179 interest in the entity equal to 5 percent or greater, and any
180 treating provider who participates in or intends to participate
181 in Medicaid through the entity. The information must include:
182 (a) Proof of holding a valid license or operating
183 certificate, as applicable, if required by the state or local
184 jurisdiction in which the provider is located or if required by
185 the Federal Government.
186 (b) Information concerning any prior violation, fine,
187 suspension, termination, or other administrative action taken
188 under the Medicaid laws or, rules, or regulations of this state
189 or of any other state or the Federal Government; any prior
190 violation of the laws or, rules, or regulations relating to the
191 Medicare program; any prior violation of the rules or
192 regulations of any other public or private insurer; and any
193 prior violation of the laws or, rules, or regulations of any
194 regulatory body of this or any other state.
195 (c) Full and accurate disclosure of any financial or
196 ownership interest that the provider, or any principal, partner,
197 or major shareholder thereof, may hold in any other Medicaid
198 provider or health care related entity or any other entity that
199 is licensed by the state to provide health or residential care
200 and treatment to persons.
201 (d) If a group provider, identification of all members of
202 the group and attestation that all members of the group are
203 enrolled in or have applied to enroll in the Medicaid program.
204 (8)(a) Each provider, or each principal of the provider if
205 the provider is a corporation, partnership, association, or
206 other entity, seeking to participate in the Medicaid program
207 must submit a complete set of his or her fingerprints to the
208 agency for the purpose of conducting a criminal history record
209 check. Principals of the provider include any officer, director,
210 billing agent, managing employee, or affiliated person, or any
211 partner or shareholder who has an ownership interest equal to 5
212 percent or more in the provider. However, for a hospital
213 licensed under chapter 395 or a nursing home licensed under
214 chapter 400, principals of the provider are those who meet the
215 definition of a controlling interest under s. 408.803. A
216 director of a not-for-profit corporation or organization is not
217 a principal for purposes of a background investigation as
218 required by this section if the director: serves solely in a
219 voluntary capacity for the corporation or organization, does not
220 regularly take part in the day-to-day operational decisions of
221 the corporation or organization, receives no remuneration from
222 the not-for-profit corporation or organization for his or her
223 service on the board of directors, has no financial interest in
224 the not-for-profit corporation or organization, and has no
225 family members with a financial interest in the not-for-profit
226 corporation or organization; and if the director submits an
227 affidavit, under penalty of perjury, to this effect to the
228 agency and the not-for-profit corporation or organization
229 submits an affidavit, under penalty of perjury, to this effect
230 to the agency as part of the corporation’s or organization’s
231 Medicaid provider agreement application. Notwithstanding the
232 above, the agency may require a background check for any person
233 reasonably suspected by the agency to have been convicted of a
234 crime.
235 (a) This subsection does not apply to:
236 1. A hospital licensed under chapter 395;
237 2. A nursing home licensed under chapter 400;
238 3. A hospice licensed under chapter 400;
239 4. An assisted living facility licensed under chapter 429;
240 1.5. A unit of local government, except that requirements
241 of this subsection apply to nongovernmental providers and
242 entities contracting with the local government to provide
243 Medicaid services. The actual cost of the state and national
244 criminal history record checks must be borne by the
245 nongovernmental provider or entity; or
246 2.6. Any business that derives more than 50 percent of its
247 revenue from the sale of goods to the final consumer, and the
248 business or its controlling parent is required to file a form
249 10-K or other similar statement with the Securities and Exchange
250 Commission or has a net worth of $50 million or more.
251 (b) Background screening shall be conducted in accordance
252 with chapter 435 and s. 408.809. The cost of the state and
253 national criminal record check shall be borne by the provider.
254 (c) Proof of compliance with the requirements of level 2
255 screening under chapter 435 conducted within 12 months before
256 the date the Medicaid provider application is submitted to the
257 agency fulfills the requirements of this subsection.
258 (9) Upon receipt of a completed, signed, and dated
259 application, and completion of any necessary background
260 investigation and criminal history record check, the agency must
261 either:
262 (a) Enroll the applicant as a Medicaid provider upon
263 approval of the provider application. The enrollment effective
264 date is shall be the date the agency receives the provider
265 application. With respect to a provider that requires a Medicare
266 certification survey, the enrollment effective date is the date
267 the certification is awarded. With respect to a provider that
268 completes a change of ownership, the effective date is the date
269 the agency received the application, the date the change of
270 ownership was complete, or the date the applicant became
271 eligible to provide services under Medicaid, whichever date is
272 later. With respect to a provider of emergency medical services
273 transportation or emergency services and care, the effective
274 date is the date the services were rendered. Payment for any
275 claims for services provided to Medicaid recipients between the
276 date of receipt of the application and the date of approval is
277 contingent on applying any and all applicable audits and edits
278 contained in the agency’s claims adjudication and payment
279 processing systems. The agency may enroll a provider located
280 outside this the state of Florida if the provider’s location is
281 no more than 50 miles from the Florida state line, if the
282 provider is actively licensed in this state and provides
283 diagnostic services through telecommunications and information
284 technology in order to provide clinical health care at a
285 distance, or if the agency determines a need for that provider
286 type to ensure adequate access to care; or
287 (b) Deny the application if the agency finds that it is in
288 the best interest of the Medicaid program to do so. The agency
289 may consider the factors listed in subsection (10), as well as
290 any other factor that could affect the effective and efficient
291 administration of the program, including, but not limited to,
292 the applicant’s demonstrated ability to provide services,
293 conduct business, and operate a financially viable concern; the
294 current availability of medical care, services, or supplies to
295 recipients, taking into account geographic location and
296 reasonable travel time; the number of providers of the same type
297 already enrolled in the same geographic area; and the
298 credentials, experience, success, and patient outcomes of the
299 provider for the services that it is making application to
300 provide in the Medicaid program. The agency shall deny the
301 application if the agency finds that a provider; any officer,
302 director, agent, managing employee, or affiliated person; or any
303 partner or shareholder having an ownership interest equal to 5
304 percent or greater in the provider if the provider is a
305 corporation, partnership, or other business entity, has failed
306 to pay all outstanding fines or overpayments assessed by final
307 order of the agency or final order of the Centers for Medicare
308 and Medicaid Services, not subject to further appeal, unless the
309 provider agrees to a repayment plan that includes withholding
310 Medicaid reimbursement until the amount due is paid in full.
311 Section 2. Subsection (17) of section 409.910, Florida
312 Statutes, is amended to read:
313 409.910 Responsibility for payments on behalf of Medicaid
314 eligible persons when other parties are liable.—
315 (17) A recipient or his or her legal representative or any
316 person representing, or acting as agent for, a recipient or the
317 recipient’s legal representative, who has notice, excluding
318 notice charged solely by reason of the recording of the lien
319 pursuant to paragraph (6)(c), or who has actual knowledge of the
320 agency’s rights to third-party benefits under this section, who
321 receives any third-party benefit or proceeds therefrom for a
322 covered illness or injury, must is required either to pay the
323 agency, within 60 days after receipt of settlement proceeds, pay
324 the agency the full amount of the third-party benefits, but not
325 more than in excess of the total medical assistance provided by
326 Medicaid, or to place the full amount of the third-party
327 benefits in an interest-bearing a trust account for the benefit
328 of the agency pending an judicial or administrative
329 determination of the agency’s right to the benefits thereto.
330 Proof that any such person had notice or knowledge that the
331 recipient had received medical assistance from Medicaid, and
332 that third-party benefits or proceeds therefrom were in any way
333 related to a covered illness or injury for which Medicaid had
334 provided medical assistance, and that any such person knowingly
335 obtained possession or control of, or used, third-party benefits
336 or proceeds and failed either to pay the agency the full amount
337 required by this section or to hold the full amount of third
338 party benefits or proceeds in an interest-bearing trust account
339 pending an judicial or administrative determination, unless
340 adequately explained, gives rise to an inference that such
341 person knowingly failed to credit the state or its agent for
342 payments received from social security, insurance, or other
343 sources, pursuant to s. 414.39(4)(b), and acted with the intent
344 set forth in s. 812.014(1).
345 (a) A recipient may contest the amount designated as
346 recovered medical expense damages payable to the agency pursuant
347 to the formula specified in paragraph (11)(f) by filing a
348 petition under chapter 120 within 21 days after the date of
349 payment of funds to the agency or after the date of placing the
350 full amount of the third-party benefits in the trust account for
351 the benefit of the agency. The petition shall be filed with the
352 Division of Administrative Hearings. For purposes of chapter
353 120, the payment of funds to the agency or the placement of the
354 full amount of the third-party benefits in the trust account for
355 the benefit of the agency constitutes final agency action and
356 notice thereof. Final order authority for the proceedings
357 specified in this subsection rests with the Division of
358 Administrative Hearings. This procedure is the exclusive method
359 for challenging the amount of third-party benefits payable to
360 the agency.
361 1. In order to successfully challenge the amount payable to
362 the agency, the recipient must prove, by clear and convincing
363 evidence, that a lesser portion of the total recovery should be
364 allocated as reimbursement for past and future medical expenses
365 than the amount calculated by the agency pursuant to the formula
366 set forth in paragraph (11)(f) or that Medicaid provided a
367 lesser amount of medical assistance than that asserted by the
368 agency.
369 2. The agency’s provider processing system reports are
370 admissible as prima facie evidence in substantiating the
371 agency’s claim.
372 3. Venue for all administrative proceedings pursuant to
373 this subsection lies in Leon County, at the discretion of the
374 agency. Venue for all appellate proceedings arising from the
375 administrative proceeding outlined in this subsection lie at the
376 First District Court of Appeal in Leon County, at the discretion
377 of the agency.
378 4. Each party shall bear its own attorney fees and costs
379 for any administrative proceeding conducted pursuant to this
380 paragraph.
381 (b)(a) In cases of suspected criminal violations or
382 fraudulent activity, the agency may take any civil action
383 permitted at law or equity to recover the greatest possible
384 amount, including, without limitation, treble damages under ss.
385 772.11 and 812.035(7).
386 1.(b) The agency may is authorized to investigate and to
387 request appropriate officers or agencies of the state to
388 investigate suspected criminal violations or fraudulent activity
389 related to third-party benefits, including, without limitation,
390 ss. 414.39 and 812.014. Such requests may be directed, without
391 limitation, to the Medicaid Fraud Control Unit of the Office of
392 the Attorney General, or to any state attorney. Pursuant to s.
393 409.913, the Attorney General has primary responsibility to
394 investigate and control Medicaid fraud.
395 2.(c) In carrying out duties and responsibilities related
396 to Medicaid fraud control, the agency may subpoena witnesses or
397 materials within or outside the state and, through any duly
398 designated employee, administer oaths and affirmations and
399 collect evidence for possible use in either civil or criminal
400 judicial proceedings.
401 3.(d) All information obtained and documents prepared
402 pursuant to an investigation of a Medicaid recipient, the
403 recipient’s legal representative, or any other person relating
404 to an allegation of recipient fraud or theft is confidential and
405 exempt from s. 119.07(1):
406 a.1. Until such time as the agency takes final agency
407 action;
408 b.2. Until such time as the Department of Legal Affairs
409 refers the case for criminal prosecution;
410 c.3. Until such time as an indictment or criminal
411 information is filed by a state attorney in a criminal case; or
412 d.4. At all times if otherwise protected by law.
413 Section 3. Subsections (9), (13), (15), (16), (21), (22),
414 (25), (28), (30), and (31) of section 409.913, Florida Statutes,
415 are amended to read:
416 409.913 Oversight of the integrity of the Medicaid
417 program.—The agency shall operate a program to oversee the
418 activities of Florida Medicaid recipients, and providers and
419 their representatives, to ensure that fraudulent and abusive
420 behavior and neglect of recipients occur to the minimum extent
421 possible, and to recover overpayments and impose sanctions as
422 appropriate. Beginning January 1, 2003, and each year
423 thereafter, the agency and the Medicaid Fraud Control Unit of
424 the Department of Legal Affairs shall submit a joint report to
425 the Legislature documenting the effectiveness of the state’s
426 efforts to control Medicaid fraud and abuse and to recover
427 Medicaid overpayments during the previous fiscal year. The
428 report must describe the number of cases opened and investigated
429 each year; the sources of the cases opened; the disposition of
430 the cases closed each year; the amount of overpayments alleged
431 in preliminary and final audit letters; the number and amount of
432 fines or penalties imposed; any reductions in overpayment
433 amounts negotiated in settlement agreements or by other means;
434 the amount of final agency determinations of overpayments; the
435 amount deducted from federal claiming as a result of
436 overpayments; the amount of overpayments recovered each year;
437 the amount of cost of investigation recovered each year; the
438 average length of time to collect from the time the case was
439 opened until the overpayment is paid in full; the amount
440 determined as uncollectible and the portion of the uncollectible
441 amount subsequently reclaimed from the Federal Government; the
442 number of providers, by type, that are terminated from
443 participation in the Medicaid program as a result of fraud and
444 abuse; and all costs associated with discovering and prosecuting
445 cases of Medicaid overpayments and making recoveries in such
446 cases. The report must also document actions taken to prevent
447 overpayments and the number of providers prevented from
448 enrolling in or reenrolling in the Medicaid program as a result
449 of documented Medicaid fraud and abuse and must include policy
450 recommendations necessary to prevent or recover overpayments and
451 changes necessary to prevent and detect Medicaid fraud. All
452 policy recommendations in the report must include a detailed
453 fiscal analysis, including, but not limited to, implementation
454 costs, estimated savings to the Medicaid program, and the return
455 on investment. The agency must submit the policy recommendations
456 and fiscal analyses in the report to the appropriate estimating
457 conference, pursuant to s. 216.137, by February 15 of each year.
458 The agency and the Medicaid Fraud Control Unit of the Department
459 of Legal Affairs each must include detailed unit-specific
460 performance standards, benchmarks, and metrics in the report,
461 including projected cost savings to the state Medicaid program
462 during the following fiscal year.
463 (9) A Medicaid provider shall retain medical, professional,
464 financial, and business records pertaining to services and goods
465 furnished to a Medicaid recipient and billed to Medicaid for 6 a
466 period of 5 years after the date of furnishing such services or
467 goods. The agency may investigate, review, or analyze such
468 records, which must be made available during normal business
469 hours. However, 24-hour notice must be provided if patient
470 treatment would be disrupted. The provider must keep is
471 responsible for furnishing to the agency, and keeping the agency
472 informed of the location of, the provider’s Medicaid-related
473 records. The authority of the agency to obtain Medicaid-related
474 records from a provider is neither curtailed nor limited during
475 a period of litigation between the agency and the provider.
476 (13) The agency shall immediately terminate participation
477 of a Medicaid provider in the Medicaid program and may seek
478 civil remedies or impose other administrative sanctions against
479 a Medicaid provider, if the provider or any principal, officer,
480 director, agent, managing employee, or affiliated person of the
481 provider, or any partner or shareholder having an ownership
482 interest in the provider equal to 5 percent or greater, has been
483 convicted of a criminal offense under federal law or the law of
484 any state relating to the practice of the provider’s profession,
485 or a criminal offense listed under s. 408.809(4), s.
486 409.907(10), or s. 435.04(2) has been:
487 (a) Convicted of a criminal offense related to the delivery
488 of any health care goods or services, including the performance
489 of management or administrative functions relating to the
490 delivery of health care goods or services;
491 (b) Convicted of a criminal offense under federal law or
492 the law of any state relating to the practice of the provider’s
493 profession; or
494 (c) Found by a court of competent jurisdiction to have
495 neglected or physically abused a patient in connection with the
496 delivery of health care goods or services. If the agency
497 determines that the a provider did not participate or acquiesce
498 in the an offense specified in paragraph (a), paragraph (b), or
499 paragraph (c), termination will not be imposed. If the agency
500 effects a termination under this subsection, the agency shall
501 take final agency action issue an immediate final order pursuant
502 to s. 120.569(2)(n).
503 (15) The agency shall seek a remedy provided by law,
504 including, but not limited to, any remedy provided in
505 subsections (13) and (16) and s. 812.035, if:
506 (a) The provider’s license has not been renewed, or has
507 been revoked, suspended, or terminated, for cause, by the
508 licensing agency of any state;
509 (b) The provider has failed to make available or has
510 refused access to Medicaid-related records to an auditor,
511 investigator, or other authorized employee or agent of the
512 agency, the Attorney General, a state attorney, or the Federal
513 Government;
514 (c) The provider has not furnished or has failed to make
515 available such Medicaid-related records as the agency has found
516 necessary to determine whether Medicaid payments are or were due
517 and the amounts thereof;
518 (d) The provider has failed to maintain medical records
519 made at the time of service, or prior to service if prior
520 authorization is required, demonstrating the necessity and
521 appropriateness of the goods or services rendered;
522 (e) The provider is not in compliance with provisions of
523 Medicaid provider publications that have been adopted by
524 reference as rules in the Florida Administrative Code; with
525 provisions of state or federal laws, rules, or regulations; with
526 provisions of the provider agreement between the agency and the
527 provider; or with certifications found on claim forms or on
528 transmittal forms for electronically submitted claims that are
529 submitted by the provider or authorized representative, as such
530 provisions apply to the Medicaid program;
531 (f) The provider or person who ordered, authorized, or
532 prescribed the care, services, or supplies has furnished, or
533 ordered or authorized the furnishing of, goods or services to a
534 recipient which are inappropriate, unnecessary, excessive, or
535 harmful to the recipient or are of inferior quality;
536 (g) The provider has demonstrated a pattern of failure to
537 provide goods or services that are medically necessary;
538 (h) The provider or an authorized representative of the
539 provider, or a person who ordered, authorized, or prescribed the
540 goods or services, has submitted or caused to be submitted false
541 or a pattern of erroneous Medicaid claims;
542 (i) The provider or an authorized representative of the
543 provider, or a person who has ordered, authorized, or prescribed
544 the goods or services, has submitted or caused to be submitted a
545 Medicaid provider enrollment application, a request for prior
546 authorization for Medicaid services, a drug exception request,
547 or a Medicaid cost report that contains materially false or
548 incorrect information;
549 (j) The provider or an authorized representative of the
550 provider has collected from or billed a recipient or a
551 recipient’s responsible party improperly for amounts that should
552 not have been so collected or billed by reason of the provider’s
553 billing the Medicaid program for the same service;
554 (k) The provider or an authorized representative of the
555 provider has included in a cost report costs that are not
556 allowable under a Florida Title XIX reimbursement plan, after
557 the provider or authorized representative had been advised in an
558 audit exit conference or audit report that the costs were not
559 allowable;
560 (l) The provider is charged by information or indictment
561 with fraudulent billing practices or an offense referenced in
562 subsection (13). The sanction applied for this reason is limited
563 to suspension of the provider’s participation in the Medicaid
564 program for the duration of the indictment unless the provider
565 is found guilty pursuant to the information or indictment;
566 (m) The provider or a person who has ordered, authorized,
567 or prescribed the goods or services is found liable for
568 negligent practice resulting in death or injury to the
569 provider’s patient;
570 (n) The provider fails to demonstrate that it had available
571 during a specific audit or review period sufficient quantities
572 of goods, or sufficient time in the case of services, to support
573 the provider’s billings to the Medicaid program;
574 (o) The provider has failed to comply with the notice and
575 reporting requirements of s. 409.907;
576 (p) The agency has received reliable information of patient
577 abuse or neglect or of any act prohibited by s. 409.920; or
578 (q) The provider has failed to comply with an agreed-upon
579 repayment schedule.
580
581 A provider is subject to sanctions for violations of this
582 subsection as the result of actions or inactions of the
583 provider, or actions or inactions of any principal, officer,
584 director, agent, managing employee, or affiliated person of the
585 provider, or any partner or shareholder having an ownership
586 interest in the provider equal to 5 percent or greater, in which
587 the provider participated or acquiesced.
588 (16) The agency shall impose any of the following sanctions
589 or disincentives on a provider or a person for any of the acts
590 described in subsection (15):
591 (a) Suspension for a specific period of time of not more
592 than 1 year. Suspension precludes shall preclude participation
593 in the Medicaid program, which includes any action that results
594 in a claim for payment to the Medicaid program for as a result
595 of furnishing, supervising a person who is furnishing, or
596 causing a person to furnish goods or services.
597 (b) Termination for a specific period of time ranging of
598 from more than 1 year to 20 years. Termination precludes shall
599 preclude participation in the Medicaid program, which includes
600 any action that results in a claim for payment to the Medicaid
601 program for as a result of furnishing, supervising a person who
602 is furnishing, or causing a person to furnish goods or services.
603 (c) Imposition of a fine of up to $5,000 for each
604 violation. Each day that an ongoing violation continues, such as
605 refusing to furnish Medicaid-related records or refusing access
606 to records, is considered, for the purposes of this section, to
607 be a separate violation. Each instance of improper billing of a
608 Medicaid recipient; each instance of including an unallowable
609 cost on a hospital or nursing home Medicaid cost report after
610 the provider or authorized representative has been advised in an
611 audit exit conference or previous audit report of the cost
612 unallowability; each instance of furnishing a Medicaid recipient
613 goods or professional services that are inappropriate or of
614 inferior quality as determined by competent peer judgment; each
615 instance of knowingly submitting a materially false or erroneous
616 Medicaid provider enrollment application, request for prior
617 authorization for Medicaid services, drug exception request, or
618 cost report; each instance of inappropriate prescribing of drugs
619 for a Medicaid recipient as determined by competent peer
620 judgment; and each false or erroneous Medicaid claim leading to
621 an overpayment to a provider is considered, for the purposes of
622 this section, to be a separate violation.
623 (d) Immediate suspension, if the agency has received
624 information of patient abuse or neglect or of any act prohibited
625 by s. 409.920. Upon suspension, the agency must issue an
626 immediate final order under s. 120.569(2)(n).
627 (e) A fine, not to exceed $10,000, for a violation of
628 paragraph (15)(i).
629 (f) Imposition of liens against provider assets, including,
630 but not limited to, financial assets and real property, not to
631 exceed the amount of fines or recoveries sought, upon entry of
632 an order determining that such moneys are due or recoverable.
633 (g) Prepayment reviews of claims for a specified period of
634 time.
635 (h) Comprehensive followup reviews of providers every 6
636 months to ensure that they are billing Medicaid correctly.
637 (i) Corrective-action plans that would remain in effect for
638 providers for up to 3 years and that are would be monitored by
639 the agency every 6 months while in effect.
640 (j) Other remedies as permitted by law to effect the
641 recovery of a fine or overpayment.
642
643 If a provider voluntarily relinquishes its Medicaid provider
644 number or an associated license, or allows the associated
645 licensure to expire after receiving written notice that the
646 agency is conducting, or has conducted, an audit, survey,
647 inspection, or investigation and that a sanction of suspension
648 or termination will or would be imposed for noncompliance
649 discovered as a result of the audit, survey, inspection, or
650 investigation, the agency shall impose the sanction of
651 termination for cause against the provider. The Secretary of
652 Health Care Administration may make a determination that
653 imposition of a sanction or disincentive is not in the best
654 interest of the Medicaid program, in which case a sanction or
655 disincentive may shall not be imposed.
656 (21) When making a determination that an overpayment has
657 occurred, the agency shall prepare and issue an audit report to
658 the provider showing the calculation of overpayments. The
659 agency’s determination must be based solely upon information
660 available to it before issuance of the audit report and, in the
661 case of documentation obtained to substantiate claims for
662 Medicaid reimbursement, based solely upon contemporaneous
663 records.
664 (22) The audit report, supported by agency work papers,
665 showing an overpayment to a provider constitutes evidence of the
666 overpayment. A provider may not present or elicit testimony,
667 either on direct examination or cross-examination in any court
668 or administrative proceeding, regarding the purchase or
669 acquisition by any means of drugs, goods, or supplies; sales or
670 divestment by any means of drugs, goods, or supplies; or
671 inventory of drugs, goods, or supplies, unless such acquisition,
672 sales, divestment, or inventory is documented by written
673 invoices, written inventory records, or other competent written
674 documentary evidence maintained in the normal course of the
675 provider’s business. A provider may not present records to
676 contest an overpayment or sanction unless such records are
677 contemporaneous and, if requested during the audit process, were
678 furnished to the agency or its agent upon request. This
679 limitation does not apply to Medicaid cost report audits.
680 Notwithstanding the applicable rules of discovery, all
681 documentation to that will be offered as evidence at an
682 administrative hearing on a Medicaid overpayment or an
683 administrative sanction must be exchanged by all parties at
684 least 14 days before the administrative hearing or must be
685 excluded from consideration.
686 (25)(a) The agency shall withhold Medicaid payments, in
687 whole or in part, to a provider upon receipt of reliable
688 evidence that the circumstances giving rise to the need for a
689 withholding of payments involve fraud, willful
690 misrepresentation, or abuse under the Medicaid program, or a
691 crime committed while rendering goods or services to Medicaid
692 recipients. If it is determined that fraud, willful
693 misrepresentation, abuse, or a crime did not occur, the payments
694 withheld must be paid to the provider within 14 days after such
695 determination with interest at the rate of 10 percent a year.
696 Amounts not paid within 14 days accrue interest at the rate of
697 10 percent a year, beginning after the 14th day Any money
698 withheld in accordance with this paragraph shall be placed in a
699 suspended account, readily accessible to the agency, so that any
700 payment ultimately due the provider shall be made within 14
701 days.
702 (b) The agency shall deny payment, or require repayment, if
703 the goods or services were furnished, supervised, or caused to
704 be furnished by a person who has been suspended or terminated
705 from the Medicaid program or Medicare program by the Federal
706 Government or any state.
707 (c) Overpayments owed to the agency bear interest at the
708 rate of 10 percent per year from the date of final determination
709 of the overpayment by the agency, and payment arrangements must
710 be made within 30 days after the date of the final order, which
711 is not subject to further appeal at the conclusion of legal
712 proceedings. A provider who does not enter into or adhere to an
713 agreed-upon repayment schedule may be terminated by the agency
714 for nonpayment or partial payment.
715 (d) The agency, upon entry of a final agency order, a
716 judgment or order of a court of competent jurisdiction, or a
717 stipulation or settlement, may collect the moneys owed by all
718 means allowable by law, including, but not limited to, notifying
719 any fiscal intermediary of Medicare benefits that the state has
720 a superior right of payment. Upon receipt of such written
721 notification, the Medicare fiscal intermediary shall remit to
722 the state the sum claimed.
723 (e) The agency may institute amnesty programs to allow
724 Medicaid providers the opportunity to voluntarily repay
725 overpayments. The agency may adopt rules to administer such
726 programs.
727 (28) Venue for all Medicaid program integrity overpayment
728 cases lies shall lie in Leon County, at the discretion of the
729 agency.
730 (30) The agency shall terminate a provider’s participation
731 in the Medicaid program if the provider fails to reimburse an
732 overpayment or pay an agency-imposed fine that has been
733 determined by final order, not subject to further appeal, within
734 30 35 days after the date of the final order, unless the
735 provider and the agency have entered into a repayment agreement.
736 (31) If a provider requests an administrative hearing
737 pursuant to chapter 120, such hearing must be conducted within
738 90 days following assignment of an administrative law judge,
739 absent exceptionally good cause shown as determined by the
740 administrative law judge or hearing officer. Upon issuance of a
741 final order, the outstanding balance of the amount determined to
742 constitute the overpayment and fines is shall become due. If a
743 provider fails to make payments in full, fails to enter into a
744 satisfactory repayment plan, or fails to comply with the terms
745 of a repayment plan or settlement agreement, the agency shall
746 withhold medical assistance reimbursement payments for Medicaid
747 services until the amount due is paid in full.
748 Section 4. Subsection (8) of section 409.920, Florida
749 Statutes, is amended to read:
750 409.920 Medicaid provider fraud.—
751 (8) A person who provides the state, any state agency, any
752 of the state’s political subdivisions, or any agency of the
753 state’s political subdivisions with information about fraud or
754 suspected fraudulent acts fraud by a Medicaid provider,
755 including a managed care organization, is immune from civil
756 liability for libel, slander, or any other relevant tort for
757 providing the information about fraud or suspected fraudulent
758 acts unless the person acted with knowledge that the information
759 was false or with reckless disregard for the truth or falsity of
760 the information. Such immunity extends to reports of fraudulent
761 acts or suspected fraudulent acts conveyed to or from the agency
762 in any manner, including any forum and with any audience as
763 directed by the agency, and includes all discussions subsequent
764 to the report and subsequent inquiries from the agency, unless
765 the person acted with knowledge that the information was false
766 or with reckless disregard for the truth or falsity of the
767 information. As used in this subsection, the term “fraudulent
768 acts” includes actual or suspected fraud and abuse, insurance
769 fraud, licensure fraud, or public assistance fraud, including
770 any fraud-related matters that a provider or health plan is
771 required to report to the agency or a law enforcement agency.
772 Section 5. Subsection (3) of section 624.351, Florida
773 Statutes, is amended, and subsection (8) is added to that
774 section, to read:
775 624.351 Medicaid and Public Assistance Fraud Strike Force.—
776 (3) MEMBERSHIP.—The strike force shall consist of the
777 following 11 members or their designees. A designee shall serve
778 in the same capacity as the designating member who may not
779 designate anyone to serve in their place:
780 (a) The Chief Financial Officer, who shall serve as chair.
781 (b) The Attorney General, who shall serve as vice chair.
782 (c) The executive director of the Department of Law
783 Enforcement.
784 (d) The Secretary of Health Care Administration.
785 (e) The Secretary of Children and Family Services.
786 (f) The State Surgeon General.
787 (g) Five members appointed by the Chief Financial Officer,
788 consisting of two sheriffs, two chiefs of police, and one state
789 attorney. When making these appointments, the Chief Financial
790 Officer shall consider representation by geography, population,
791 ethnicity, and other relevant factors in order to ensure that
792 the membership of the strike force is representative of the
793 state as a whole.
794 (8) EXPIRATION.—This section is repealed June 30, 2014.
795 Section 6. Subsection (3) is added to section 624.352,
796 Florida Statutes, to read:
797 624.352 Interagency agreements to detect and deter Medicaid
798 and public assistance fraud.—
799 (3) This section is repealed June 30, 2014.
800 Section 7. This act shall take effect July 1, 2013.