Florida Senate - 2010                              CS for SB 752
       
       
       
       By the Committee on Health Regulation; and Senator Gaetz
       
       
       
       
       588-02758-10                                           2010752c1
    1                        A bill to be entitled                      
    2         An act relating to health care fraud; amending s.
    3         400.471, F.S.; prohibiting the Agency for Health Care
    4         Administration from issuing an initial license to a
    5         home health agency for the purpose of opening a new
    6         home health agency under certain conditions until a
    7         specified date; prohibiting the agency from issuing a
    8         change-of-ownership license to a home health agency
    9         under certain conditions until a specified date;
   10         providing an exception; amending s. 400.474, F.S.;
   11         authorizing the agency to revoke a home health agency
   12         license if the applicant or any controlling interest
   13         has been sanctioned for acts specified under s.
   14         400.471(10), F.S.; amending s. 408.815, F.S.; revising
   15         the grounds upon which the agency may deny or revoke
   16         an application for an initial license, a change-of
   17         ownership license, or a licensure renewal for certain
   18         health care entities listed in s. 408.802, F.S.;
   19         amending s. 409.907, F.S.; extending the number of
   20         years that Medicaid providers must retain Medicaid
   21         recipient records; adding additional requirements to
   22         the Medicaid provider agreement; revising
   23         applicability of screening requirements; revising
   24         conditions under which the agency is authorized to
   25         deny a Medicaid provider application; amending s.
   26         409.912, F.S.; revising requirements for Medicaid
   27         prepaid, fixed-sum, and managed care contracts;
   28         repealing s. 409.9122(13), F.S., relating to the
   29         enrollee assignment process of Medicaid managed
   30         prepaid health plans for those Medicaid managed
   31         prepaid health plans operating in Miami-Dade County;
   32         amending s. 409.913, F.S.; removing a required element
   33         from the joint Medicaid fraud and abuse report
   34         submitted by the agency and the Medicaid Fraud Control
   35         Unit of the Department of Legal Affairs; extending the
   36         number of years that Medicaid providers must retain
   37         Medicaid recipient records; authorizing the Medicaid
   38         program integrity staff to immediately suspend or
   39         terminate a Medicaid provider for engaging in
   40         specified conduct; removing a requirement for the
   41         agency to hold suspended Medicaid payments in a
   42         separate account; authorizing the agency to deny
   43         payment or require repayment to Medicaid providers
   44         convicted of certain crimes; authorizing the agency to
   45         terminate a Medicaid provider if the provider fails to
   46         reimburse a fine determined by a final order;
   47         authorizing the agency to withhold Medicaid
   48         reimbursement to a Medicaid provider that fails to pay
   49         a fine determined by a final order, fails to enter
   50         into a repayment plan, or fails to comply with a
   51         repayment plan or settlement agreement; amending s.
   52         409.9203, F.S.; providing that certain state employees
   53         are ineligible from receiving a reward for reporting
   54         Medicaid fraud; amending s. 456.001, F.S.; defining
   55         the term “affiliate” or “affiliated person” as it
   56         relates to health professions and occupations;
   57         amending s. 456.041, F.S.; requiring the Department of
   58         Health to include administrative complaint, arrest,
   59         and any conviction information relating to the
   60         practitioner’s profile; providing a disclaimer;
   61         amending s. 456.0635, F.S.; revising the grounds under
   62         which the Department of Health or corresponding board
   63         is required to refuse to admit a candidate to an
   64         examination and refuse to issue or renew a license,
   65         certificate, or registration of a health care
   66         practitioner; amending s. 456.072, F.S.; clarifying a
   67         ground under which disciplinary actions may be taken;
   68         amending s. 456.073, F.S.; revising applicability of
   69         investigations and administrative complaints to
   70         include Medicaid fraud; amending s. 456.074, F.S.;
   71         authorizing the Department of Health to issue an
   72         emergency order suspending the license of any person
   73         licensed under ch. 456, F.S., who engages in specified
   74         criminal conduct; providing an effective date.
   75  
   76  Be It Enacted by the Legislature of the State of Florida:
   77  
   78         Section 1. Subsection (11) of section 400.471, Florida
   79  Statutes, is amended to read:
   80         400.471 Application for license; fee.—
   81         (11)(a) The agency may not issue an initial license to a
   82  home health agency under part II of chapter 408 or this part for
   83  the purpose of opening a new home health agency until July 1,
   84  2012 2010, in any county that has at least one actively licensed
   85  home health agency and a population of persons 65 years of age
   86  or older, as indicated in the most recent population estimates
   87  published by the Executive Office of the Governor, of fewer than
   88  1,200 per home health agency. In such counties, for any
   89  application received by the agency prior to July 1, 2009, which
   90  has been deemed by the agency to be complete except for proof of
   91  accreditation, the agency may issue an initial ownership license
   92  only if the applicant has applied for accreditation before May
   93  1, 2009, from an accrediting organization that is recognized by
   94  the agency.
   95         (b) Effective October 1, 2009, the agency may not issue a
   96  change of ownership license to a home health agency under part
   97  II of chapter 408 or this part until July 1, 2012 2010, in any
   98  county that has at least one actively licensed home health
   99  agency and a population of persons 65 years of age or older, as
  100  indicated in the most recent population estimates published by
  101  the Executive Office of the Governor, of fewer than 1,200 per
  102  home health agency. In such counties, for any application
  103  received by the agency before prior to October 1, 2009, which
  104  has been deemed by the agency to be complete except for proof of
  105  accreditation, the agency may issue a change of ownership
  106  license only if the applicant has applied for accreditation
  107  before August 1, 2009, from an accrediting organization that is
  108  recognized by the agency. This paragraph does not apply to an
  109  application for a change in ownership from an existing home
  110  health agency that is accredited, has been licensed by the state
  111  at least 5 years, and is in good standing with the agency.
  112         Section 2. Subsection (8) is added to section 400.474,
  113  Florida Statutes, to read:
  114         400.474 Administrative penalties.—
  115         (8)The agency may revoke the license of a home health
  116  agency that is not eligible for licensure renewal under s.
  117  400.471(10).
  118         Section 3. Subsection (4) of section 408.815, Florida
  119  Statutes, is amended, and subsection (5) is added to that
  120  section, to read:
  121         408.815 License or application denial; revocation.—
  122         (4) In addition to the grounds provided in authorizing
  123  statutes, the agency shall deny an application for an initial a
  124  license or a change-of-ownership license renewal if the
  125  applicant or a person having a controlling interest in the an
  126  applicant has been:
  127         (a) Has been convicted of, or entered enters a plea of
  128  guilty or nolo contendere to, regardless of adjudication, a
  129  felony under chapter 409, chapter 817, chapter 893, or a similar
  130  felony offense committed in another state or jurisdiction 21
  131  U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the
  132  sentence and any subsequent period of probation for such
  133  conviction convictions or plea ended more than 15 years before
  134  prior to the date of the application;
  135         (b)Has been convicted of, or entered a plea of guilty or
  136  nolo contendere to, regardless of adjudication, a felony under
  137  21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the
  138  sentence and any subsequent period of probation for such
  139  conviction or plea ended more than 15 years before the date of
  140  the application;
  141         (c)(b)Has been terminated for cause from the Florida
  142  Medicaid program pursuant to s. 409.913, unless the applicant
  143  has been in good standing with the Florida Medicaid program for
  144  the most recent 5 years; or
  145         (d)(c)Has been terminated for cause, pursuant to the
  146  appeals procedures established by the state, or Federal
  147  Government, from the federal Medicare program or from any other
  148  state Medicaid program, unless the applicant has been in good
  149  standing with a state Medicaid program or the federal Medicare
  150  program for the most recent 5 years and the termination occurred
  151  at least 20 years before prior to the date of the application;
  152  or.
  153         (e)Is currently listed on the United States Department of
  154  Health and Human Services Office of Inspector General’s List of
  155  Excluded Individuals and Entities.
  156         (5)In addition to the grounds provided in authorizing
  157  statutes, the agency shall deny an application for licensure
  158  renewal if the applicant or a person having a controlling
  159  interest in the applicant:
  160         (a)Has been convicted of, or entered a plea of guilty or
  161  nolo contendere to, regardless of adjudication, a felony under
  162  chapter 409, chapter 817, chapter 893, or a similar felony
  163  offense committed in another state or jurisdiction since July 1,
  164  2009;
  165         (b)Has been convicted of, or entered a plea of guilty or
  166  nolo contendere to, regardless of adjudication, a felony under
  167  21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396 since July 1,
  168  2009;
  169         (c)Has been terminated for cause from the Florida Medicaid
  170  program pursuant to s. 409.913, unless the applicant has been in
  171  good standing with the Florida Medicaid program for the most
  172  recent 5 years;
  173         (d)Has been terminated for cause, pursuant to the appeals
  174  procedures established by the state, from any other state
  175  Medicaid program, unless the applicant has been in good standing
  176  with a state Medicaid program for the most recent 5 years and
  177  the termination occurred at least 20 years before the date of
  178  the application; or
  179         (e)Is currently listed on the United States Department of
  180  Health and Human Services Office of Inspector General’s List of
  181  Excluded Individuals and Entities.
  182         Section 4. Paragraph (c) of subsection (3) of section
  183  409.907, Florida Statutes, is amended, paragraph (k) is added to
  184  that subsection, and subsection (8), paragraph (b) of subsection
  185  (9), and subsection (10) of that section are amended, to read:
  186         409.907 Medicaid provider agreements.—The agency may make
  187  payments for medical assistance and related services rendered to
  188  Medicaid recipients only to an individual or entity who has a
  189  provider agreement in effect with the agency, who is performing
  190  services or supplying goods in accordance with federal, state,
  191  and local law, and who agrees that no person shall, on the
  192  grounds of handicap, race, color, or national origin, or for any
  193  other reason, be subjected to discrimination under any program
  194  or activity for which the provider receives payment from the
  195  agency.
  196         (3) The provider agreement developed by the agency, in
  197  addition to the requirements specified in subsections (1) and
  198  (2), shall require the provider to:
  199         (c) Retain all medical and Medicaid-related records for a
  200  period of 6 5 years to satisfy all necessary inquiries by the
  201  agency.
  202         (k)Report any change of any principal of the provider,
  203  including any officer, director, agent, managing employee, or
  204  affiliated person, or any partner or shareholder who has an
  205  ownership interest equal to 5 percent or more in the provider.
  206  The provider must report changes to the agency no later than 30
  207  days after the change occurs.
  208         (8)(a) Each provider, or each principal of the provider if
  209  the provider is a corporation, partnership, association, or
  210  other entity, seeking to participate in the Medicaid program
  211  must submit a complete set of his or her fingerprints to the
  212  agency for the purpose of conducting a criminal history record
  213  check. Principals of the provider include any officer, director,
  214  billing agent, managing employee, or affiliated person, or any
  215  partner or shareholder who has an ownership interest equal to 5
  216  percent or more in the provider. However, a director of a not
  217  for-profit corporation or organization is not a principal for
  218  purposes of a background investigation as required by this
  219  section if the director: serves solely in a voluntary capacity
  220  for the corporation or organization, does not regularly take
  221  part in the day-to-day operational decisions of the corporation
  222  or organization, receives no remuneration from the not-for
  223  profit corporation or organization for his or her service on the
  224  board of directors, has no financial interest in the not-for
  225  profit corporation or organization, and has no family members
  226  with a financial interest in the not-for-profit corporation or
  227  organization; and if the director submits an affidavit, under
  228  penalty of perjury, to this effect to the agency and the not
  229  for-profit corporation or organization submits an affidavit,
  230  under penalty of perjury, to this effect to the agency as part
  231  of the corporation’s or organization’s Medicaid provider
  232  agreement application. Notwithstanding the above, the agency may
  233  require a background check for any person reasonably suspected
  234  by the agency to have been convicted of a crime. This subsection
  235  does shall 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 when 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 either is required to file a
  249  form 10-K or other similar statement with the Securities and
  250  Exchange 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 agency shall submit the
  253  fingerprints to the Department of Law Enforcement. The
  254  department shall conduct a state criminal-background
  255  investigation and forward the fingerprints to the Federal Bureau
  256  of Investigation for a national criminal-history record check.
  257  The cost of the state and national criminal record check shall
  258  be borne by the provider.
  259         (c)The agency may permit a provider to participate in the
  260  Medicaid program pending the results of the criminal record
  261  check. However, such permission is fully revocable if the record
  262  check reveals any crime-related history as provided in
  263  subsection (10).
  264         (c)(d) Proof of compliance with the requirements of level 2
  265  screening under s. 435.04 conducted within 12 months prior to
  266  the date that the Medicaid provider application is submitted to
  267  the agency shall fulfill the requirements of this subsection.
  268  Proof of compliance with the requirements of level 1 screening
  269  under s. 435.03 conducted within 12 months prior to the date
  270  that the Medicaid provider application is submitted to the
  271  agency shall meet the requirement that the Department of Law
  272  Enforcement conduct a state criminal history record check.
  273         (9) Upon receipt of a completed, signed, and dated
  274  application, and completion of any necessary background
  275  investigation and criminal history record check, the agency must
  276  either:
  277         (b) Deny the application if the agency finds that it is in
  278  the best interest of the Medicaid program to do so. The agency
  279  may consider any the factors listed in subsection (10), as well
  280  as any other factor that could affect the effective and
  281  efficient administration of the program, including, but not
  282  limited to, the applicant’s demonstrated ability to provide
  283  services, conduct business, and operate a financially viable
  284  concern; the current availability of medical care, services, or
  285  supplies to recipients, taking into account geographic location
  286  and reasonable travel time; the number of providers of the same
  287  type already enrolled in the same geographic area; and the
  288  credentials, experience, success, and patient outcomes of the
  289  provider for the services that it is making application to
  290  provide in the Medicaid program. The agency shall deny the
  291  application if the agency finds that a provider; any officer,
  292  director, agent, managing employee, or affiliated person; or any
  293  principal, partner, or shareholder having an ownership interest
  294  equal to 5 percent or greater in the provider if the provider is
  295  a corporation, partnership, or other business entity, has failed
  296  to pay all outstanding fines or overpayments assessed by final
  297  order of the agency or final order of the Centers for Medicare
  298  and Medicaid Services, not subject to further appeal, unless the
  299  provider agrees to a repayment plan that includes withholding
  300  Medicaid reimbursement until the amount due is paid in full.
  301         (10) The agency shall deny the application if may consider
  302  whether the provider, or any officer, director, agent, managing
  303  employee, or affiliated person, or any principal, partner, or
  304  shareholder having an ownership interest equal to 5 percent or
  305  greater in the provider if the provider is a corporation,
  306  partnership, or other business entity, has committed an offense
  307  listed in s. 409.913(13), and may deny the application if one of
  308  these persons has:
  309         (a) Made a false representation or omission of any material
  310  fact in making the application, including the submission of an
  311  application that conceals the controlling or ownership interest
  312  of any officer, director, agent, managing employee, affiliated
  313  person, or principal, partner, or shareholder who may not be
  314  eligible to participate;
  315         (b) Been or is currently excluded, suspended, terminated
  316  from, or has involuntarily withdrawn from participation in,
  317  Florida’s Medicaid program or any other state’s Medicaid
  318  program, or from participation in any other governmental or
  319  private health care or health insurance program;
  320         (c)Been convicted of a criminal offense relating to the
  321  delivery of any goods or services under Medicaid or Medicare or
  322  any other public or private health care or health insurance
  323  program including the performance of management or
  324  administrative services relating to the delivery of goods or
  325  services under any such program;
  326         (d)Been convicted under federal or state law of a criminal
  327  offense related to the neglect or abuse of a patient in
  328  connection with the delivery of any health care goods or
  329  services;
  330         (c)(e) Been convicted under federal or state law of a
  331  criminal offense relating to the unlawful manufacture,
  332  distribution, prescription, or dispensing of a controlled
  333  substance;
  334         (d)(f) Been convicted of any criminal offense relating to
  335  fraud, theft, embezzlement, breach of fiduciary responsibility,
  336  or other financial misconduct;
  337         (e)(g) Been convicted under federal or state law of a crime
  338  punishable by imprisonment of a year or more which involves
  339  moral turpitude;
  340         (f)(h) Been convicted in connection with the interference
  341  or obstruction of any investigation into any criminal offense
  342  listed in this subsection;
  343         (g)(i) Been found to have violated federal or state laws,
  344  rules, or regulations governing Florida’s Medicaid program or
  345  any other state’s Medicaid program, the Medicare program, or any
  346  other publicly funded federal or state health care or health
  347  insurance program, and been sanctioned accordingly;
  348         (h)(j) Been previously found by a licensing, certifying, or
  349  professional standards board or agency to have violated the
  350  standards or conditions relating to licensure or certification
  351  or the quality of services provided; or
  352         (i)(k) Failed to pay any fine or overpayment properly
  353  assessed under the Medicaid program in which no appeal is
  354  pending or after resolution of the proceeding by stipulation or
  355  agreement, unless the agency has issued a specific letter of
  356  forgiveness or has approved a repayment schedule to which the
  357  provider agrees to adhere.
  358         Section 5. Subsections (10) and (32) of section 409.912,
  359  Florida Statutes, are amended to read:
  360         409.912 Cost-effective purchasing of health care.—The
  361  agency shall purchase goods and services for Medicaid recipients
  362  in the most cost-effective manner consistent with the delivery
  363  of quality medical care. To ensure that medical services are
  364  effectively utilized, the agency may, in any case, require a
  365  confirmation or second physician’s opinion of the correct
  366  diagnosis for purposes of authorizing future services under the
  367  Medicaid program. This section does not restrict access to
  368  emergency services or poststabilization care services as defined
  369  in 42 C.F.R. part 438.114. Such confirmation or second opinion
  370  shall be rendered in a manner approved by the agency. The agency
  371  shall maximize the use of prepaid per capita and prepaid
  372  aggregate fixed-sum basis services when appropriate and other
  373  alternative service delivery and reimbursement methodologies,
  374  including competitive bidding pursuant to s. 287.057, designed
  375  to facilitate the cost-effective purchase of a case-managed
  376  continuum of care. The agency shall also require providers to
  377  minimize the exposure of recipients to the need for acute
  378  inpatient, custodial, and other institutional care and the
  379  inappropriate or unnecessary use of high-cost services. The
  380  agency shall contract with a vendor to monitor and evaluate the
  381  clinical practice patterns of providers in order to identify
  382  trends that are outside the normal practice patterns of a
  383  provider’s professional peers or the national guidelines of a
  384  provider’s professional association. The vendor must be able to
  385  provide information and counseling to a provider whose practice
  386  patterns are outside the norms, in consultation with the agency,
  387  to improve patient care and reduce inappropriate utilization.
  388  The agency may mandate prior authorization, drug therapy
  389  management, or disease management participation for certain
  390  populations of Medicaid beneficiaries, certain drug classes, or
  391  particular drugs to prevent fraud, abuse, overuse, and possible
  392  dangerous drug interactions. The Pharmaceutical and Therapeutics
  393  Committee shall make recommendations to the agency on drugs for
  394  which prior authorization is required. The agency shall inform
  395  the Pharmaceutical and Therapeutics Committee of its decisions
  396  regarding drugs subject to prior authorization. The agency is
  397  authorized to limit the entities it contracts with or enrolls as
  398  Medicaid providers by developing a provider network through
  399  provider credentialing. The agency may competitively bid single
  400  source-provider contracts if procurement of goods or services
  401  results in demonstrated cost savings to the state without
  402  limiting access to care. The agency may limit its network based
  403  on the assessment of beneficiary access to care, provider
  404  availability, provider quality standards, time and distance
  405  standards for access to care, the cultural competence of the
  406  provider network, demographic characteristics of Medicaid
  407  beneficiaries, practice and provider-to-beneficiary standards,
  408  appointment wait times, beneficiary use of services, provider
  409  turnover, provider profiling, provider licensure history,
  410  previous program integrity investigations and findings, peer
  411  review, provider Medicaid policy and billing compliance records,
  412  clinical and medical record audits, and other factors. Providers
  413  shall not be entitled to enrollment in the Medicaid provider
  414  network. The agency shall determine instances in which allowing
  415  Medicaid beneficiaries to purchase durable medical equipment and
  416  other goods is less expensive to the Medicaid program than long
  417  term rental of the equipment or goods. The agency may establish
  418  rules to facilitate purchases in lieu of long-term rentals in
  419  order to protect against fraud and abuse in the Medicaid program
  420  as defined in s. 409.913. The agency may seek federal waivers
  421  necessary to administer these policies.
  422         (10) The agency shall not contract on a prepaid or fixed
  423  sum basis for Medicaid services with an entity which knows or
  424  reasonably should know that any principal, officer, director,
  425  agent, managing employee, or owner of stock or beneficial
  426  interest in excess of 5 percent common or preferred stock, or
  427  the entity itself, has been found guilty of, regardless of
  428  adjudication, or entered a plea of nolo contendere, or guilty,
  429  to:
  430         (a) An offense listed in s. 408.809, s. 409.913(13), or s.
  431  435.04 Fraud;
  432         (b) Violation of federal or state antitrust statutes,
  433  including those proscribing price fixing between competitors and
  434  the allocation of customers among competitors;
  435         (c) Commission of a felony involving embezzlement, theft,
  436  forgery, income tax evasion, bribery, falsification or
  437  destruction of records, making false statements, receiving
  438  stolen property, making false claims, or obstruction of justice;
  439  or
  440         (d) Any crime in any jurisdiction which directly relates to
  441  the provision of health services on a prepaid or fixed-sum
  442  basis.
  443         (32) Each managed care plan that is under contract with the
  444  agency to provide health care services to Medicaid recipients
  445  shall annually conduct a background check with the Florida
  446  Department of Law Enforcement of all persons with ownership
  447  interest of 5 percent or more or executive management
  448  responsibility for the managed care plan and shall submit to the
  449  agency information concerning any such person who has been found
  450  guilty of, regardless of adjudication, or has entered a plea of
  451  nolo contendere or guilty to, any of the offenses listed in s.
  452  408.809, s. 409.913(13), or s. 435.04 s. 435.03.
  453         Section 6. Subsection (13) of section 409.9122, Florida
  454  Statutes, is repealed.
  455         Section 7. Section 409.913, Florida Statutes, is amended to
  456  read:
  457         409.913 Oversight of the integrity of the Medicaid
  458  program.—The agency shall operate a program to oversee the
  459  activities of Florida Medicaid recipients, and providers and
  460  their representatives, to ensure that fraudulent and abusive
  461  behavior and neglect of recipients occur to the minimum extent
  462  possible, and to recover overpayments and impose sanctions as
  463  appropriate. Beginning January 1, 2003, and each year
  464  thereafter, the agency and the Medicaid Fraud Control Unit of
  465  the Department of Legal Affairs shall submit a joint report to
  466  the Legislature documenting the effectiveness of the state’s
  467  efforts to control Medicaid fraud and abuse and to recover
  468  Medicaid overpayments during the previous fiscal year. The
  469  report must describe the number of cases opened and investigated
  470  each year; the sources of the cases opened; the disposition of
  471  the cases closed each year; the amount of overpayments alleged
  472  in preliminary and final audit letters; the number and amount of
  473  fines or penalties imposed; any reductions in overpayment
  474  amounts negotiated in settlement agreements or by other means;
  475  the amount of final agency determinations of overpayments; the
  476  amount deducted from federal claiming as a result of
  477  overpayments; the amount of overpayments recovered each year;
  478  the amount of cost of investigation recovered each year; the
  479  average length of time to collect from the time the case was
  480  opened until the overpayment is paid in full; the amount
  481  determined as uncollectible and the portion of the uncollectible
  482  amount subsequently reclaimed from the Federal Government; the
  483  number of providers, by type, that are terminated from
  484  participation in the Medicaid program as a result of fraud and
  485  abuse; and all costs associated with discovering and prosecuting
  486  cases of Medicaid overpayments and making recoveries in such
  487  cases. The report must also document actions taken to prevent
  488  overpayments and the number of providers prevented from
  489  enrolling in or reenrolling in the Medicaid program as a result
  490  of documented Medicaid fraud and abuse and must include policy
  491  recommendations necessary to prevent or recover overpayments and
  492  changes necessary to prevent and detect Medicaid fraud. All
  493  policy recommendations in the report must include a detailed
  494  fiscal analysis, including, but not limited to, implementation
  495  costs, estimated savings to the Medicaid program, and the return
  496  on investment. The agency must submit the policy recommendations
  497  and fiscal analyses in the report to the appropriate estimating
  498  conference, pursuant to s. 216.137, by February 15 of each year.
  499  The agency and the Medicaid Fraud Control Unit of the Department
  500  of Legal Affairs each must include detailed unit-specific
  501  performance standards, benchmarks, and metrics in the report,
  502  including projected cost savings to the state Medicaid program
  503  during the following fiscal year.
  504         (1) For the purposes of this section, the term:
  505         (a) “Abuse” means:
  506         1. Provider practices that are inconsistent with generally
  507  accepted business or medical practices and that result in an
  508  unnecessary cost to the Medicaid program or in reimbursement for
  509  goods or services that are not medically necessary or that fail
  510  to meet professionally recognized standards for health care.
  511         2. Recipient practices that result in unnecessary cost to
  512  the Medicaid program.
  513         (b) “Complaint” means an allegation that fraud, abuse, or
  514  an overpayment has occurred.
  515         (c) “Fraud” means an intentional deception or
  516  misrepresentation made by a person with the knowledge that the
  517  deception results in unauthorized benefit to herself or himself
  518  or another person. The term includes any act that constitutes
  519  fraud under applicable federal or state law.
  520         (d) “Medical necessity” or “medically necessary” means any
  521  goods or services necessary to palliate the effects of a
  522  terminal condition, or to prevent, diagnose, correct, cure,
  523  alleviate, or preclude deterioration of a condition that
  524  threatens life, causes pain or suffering, or results in illness
  525  or infirmity, which goods or services are provided in accordance
  526  with generally accepted standards of medical practice. For
  527  purposes of determining Medicaid reimbursement, the agency is
  528  the final arbiter of medical necessity. Determinations of
  529  medical necessity must be made by a licensed physician employed
  530  by or under contract with the agency and must be based upon
  531  information available at the time the goods or services are
  532  provided.
  533         (e) “Overpayment” includes any amount that is not
  534  authorized to be paid by the Medicaid program whether paid as a
  535  result of inaccurate or improper cost reporting, improper
  536  claiming, unacceptable practices, fraud, abuse, or mistake.
  537         (f) “Person” means any natural person, corporation,
  538  partnership, association, clinic, group, or other entity,
  539  whether or not such person is enrolled in the Medicaid program
  540  or is a provider of health care.
  541         (2) The agency shall conduct, or cause to be conducted by
  542  contract or otherwise, reviews, investigations, analyses,
  543  audits, or any combination thereof, to determine possible fraud,
  544  abuse, overpayment, or recipient neglect in the Medicaid program
  545  and shall report the findings of any overpayments in audit
  546  reports as appropriate. At least 5 percent of all audits shall
  547  be conducted on a random basis. As part of its ongoing fraud
  548  detection activities, the agency shall identify and monitor, by
  549  contract or otherwise, patterns of overutilization of Medicaid
  550  services based on state averages. The agency shall track
  551  Medicaid provider prescription and billing patterns and evaluate
  552  them against Medicaid medical necessity criteria and coverage
  553  and limitation guidelines adopted by rule. Medical necessity
  554  determination requires that service be consistent with symptoms
  555  or confirmed diagnosis of illness or injury under treatment and
  556  not in excess of the patient’s needs. The agency shall conduct
  557  reviews of provider exceptions to peer group norms and shall,
  558  using statistical methodologies, provider profiling, and
  559  analysis of billing patterns, detect and investigate abnormal or
  560  unusual increases in billing or payment of claims for Medicaid
  561  services and medically unnecessary provision of services.
  562         (3) The agency may conduct, or may contract for, prepayment
  563  review of provider claims to ensure cost-effective purchasing;
  564  to ensure that billing by a provider to the agency is in
  565  accordance with applicable provisions of all Medicaid rules,
  566  regulations, handbooks, and policies and in accordance with
  567  federal, state, and local law; and to ensure that appropriate
  568  care is rendered to Medicaid recipients. Such prepayment reviews
  569  may be conducted as determined appropriate by the agency,
  570  without any suspicion or allegation of fraud, abuse, or neglect,
  571  and may last for up to 1 year. Unless the agency has reliable
  572  evidence of fraud, misrepresentation, abuse, or neglect, claims
  573  shall be adjudicated for denial or payment within 90 days after
  574  receipt of complete documentation by the agency for review. If
  575  there is reliable evidence of fraud, misrepresentation, abuse,
  576  or neglect, claims shall be adjudicated for denial of payment
  577  within 180 days after receipt of complete documentation by the
  578  agency for review.
  579         (4) Any suspected criminal violation identified by the
  580  agency must be referred to the Medicaid Fraud Control Unit of
  581  the Office of the Attorney General for investigation. The agency
  582  and the Attorney General shall enter into a memorandum of
  583  understanding, which must include, but need not be limited to, a
  584  protocol for regularly sharing information and coordinating
  585  casework. The protocol must establish a procedure for the
  586  referral by the agency of cases involving suspected Medicaid
  587  fraud to the Medicaid Fraud Control Unit for investigation, and
  588  the return to the agency of those cases where investigation
  589  determines that administrative action by the agency is
  590  appropriate. Offices of the Medicaid program integrity program
  591  and the Medicaid Fraud Control Unit of the Department of Legal
  592  Affairs, shall, to the extent possible, be collocated. The
  593  agency and the Department of Legal Affairs shall periodically
  594  conduct joint training and other joint activities designed to
  595  increase communication and coordination in recovering
  596  overpayments.
  597         (5) A Medicaid provider is subject to having goods and
  598  services that are paid for by the Medicaid program reviewed by
  599  an appropriate peer-review organization designated by the
  600  agency. The written findings of the applicable peer-review
  601  organization are admissible in any court or administrative
  602  proceeding as evidence of medical necessity or the lack thereof.
  603         (6) Any notice required to be given to a provider under
  604  this section is presumed to be sufficient notice if sent to the
  605  address last shown on the provider enrollment file. It is the
  606  responsibility of the provider to furnish and keep the agency
  607  informed of the provider’s current address. United States Postal
  608  Service proof of mailing or certified or registered mailing of
  609  such notice to the provider at the address shown on the provider
  610  enrollment file constitutes sufficient proof of notice. Any
  611  notice required to be given to the agency by this section must
  612  be sent to the agency at an address designated by rule.
  613         (7) When presenting a claim for payment under the Medicaid
  614  program, a provider has an affirmative duty to supervise the
  615  provision of, and be responsible for, goods and services claimed
  616  to have been provided, to supervise and be responsible for
  617  preparation and submission of the claim, and to present a claim
  618  that is true and accurate and that is for goods and services
  619  that:
  620         (a) Have actually been furnished to the recipient by the
  621  provider prior to submitting the claim.
  622         (b) Are Medicaid-covered goods or services that are
  623  medically necessary.
  624         (c) Are of a quality comparable to those furnished to the
  625  general public by the provider’s peers.
  626         (d) Have not been billed in whole or in part to a recipient
  627  or a recipient’s responsible party, except for such copayments,
  628  coinsurance, or deductibles as are authorized by the agency.
  629         (e) Are provided in accord with applicable provisions of
  630  all Medicaid rules, regulations, handbooks, and policies and in
  631  accordance with federal, state, and local law.
  632         (f) Are documented by records made at the time the goods or
  633  services were provided, demonstrating the medical necessity for
  634  the goods or services rendered. Medicaid goods or services are
  635  excessive or not medically necessary unless both the medical
  636  basis and the specific need for them are fully and properly
  637  documented in the recipient’s medical record.
  638  
  639  The agency shall deny payment or require repayment for goods or
  640  services that are not presented as required in this subsection.
  641         (8) The agency shall not reimburse any person or entity for
  642  any prescription for medications, medical supplies, or medical
  643  services if the prescription was written by a physician or other
  644  prescribing practitioner who is not enrolled in the Medicaid
  645  program. This section does not apply:
  646         (a) In instances involving bona fide emergency medical
  647  conditions as determined by the agency;
  648         (b) To a provider of medical services to a patient in a
  649  hospital emergency department, hospital inpatient or outpatient
  650  setting, or nursing home;
  651         (c) To bona fide pro bono services by preapproved non
  652  Medicaid providers as determined by the agency;
  653         (d) To prescribing physicians who are board-certified
  654  specialists treating Medicaid recipients referred for treatment
  655  by a treating physician who is enrolled in the Medicaid program;
  656         (e) To prescriptions written for dually eligible Medicare
  657  beneficiaries by an authorized Medicare provider who is not
  658  enrolled in the Medicaid program;
  659         (f) To other physicians who are not enrolled in the
  660  Medicaid program but who provide a medically necessary service
  661  or prescription not otherwise reasonably available from a
  662  Medicaid-enrolled physician; or
  663         (9) A Medicaid provider shall retain medical, professional,
  664  financial, and business records pertaining to services and goods
  665  furnished to a Medicaid recipient and billed to Medicaid for a
  666  period of 6 5 years after the date of furnishing such services
  667  or goods. The agency may investigate, review, or analyze such
  668  records, which must be made available during normal business
  669  hours. However, 24-hour notice must be provided if patient
  670  treatment would be disrupted. The provider is responsible for
  671  furnishing to the agency, and keeping the agency informed of the
  672  location of, the provider’s Medicaid-related records. The
  673  authority of the agency to obtain Medicaid-related records from
  674  a provider is neither curtailed nor limited during a period of
  675  litigation between the agency and the provider.
  676         (10) Payments for the services of billing agents or persons
  677  participating in the preparation of a Medicaid claim shall not
  678  be based on amounts for which they bill nor based on the amount
  679  a provider receives from the Medicaid program.
  680         (11) The agency shall deny payment or require repayment for
  681  inappropriate, medically unnecessary, or excessive goods or
  682  services from the person furnishing them, the person under whose
  683  supervision they were furnished, or the person causing them to
  684  be furnished.
  685         (12) The complaint and all information obtained pursuant to
  686  an investigation of a Medicaid provider, or the authorized
  687  representative or agent of a provider, relating to an allegation
  688  of fraud, abuse, or neglect are confidential and exempt from the
  689  provisions of s. 119.07(1):
  690         (a) Until the agency takes final agency action with respect
  691  to the provider and requires repayment of any overpayment, or
  692  imposes an administrative sanction;
  693         (b) Until the Attorney General refers the case for criminal
  694  prosecution;
  695         (c) Until 10 days after the complaint is determined without
  696  merit; or
  697         (d) At all times if the complaint or information is
  698  otherwise protected by law.
  699         (13) The agency shall immediately terminate participation
  700  of a Medicaid provider in the Medicaid program and may seek
  701  civil remedies or impose other administrative sanctions against
  702  a Medicaid provider, if the provider or any principal, officer,
  703  director, agent, managing employee, or affiliated person of the
  704  provider, or any partner or shareholder having an ownership
  705  interest in the provider equal to 5 percent or greater, has
  706  been:
  707         (a) Convicted of a criminal offense related to the delivery
  708  of any health care goods or services, including the performance
  709  of management or administrative functions relating to the
  710  delivery of health care goods or services;
  711         (b) Convicted of a criminal offense under federal law or
  712  the law of any state relating to the practice of the provider’s
  713  profession; or
  714         (c) Found by a court of competent jurisdiction to have
  715  neglected or physically abused a patient in connection with the
  716  delivery of health care goods or services.
  717  
  718  If the agency determines a provider did not participate or
  719  acquiesce in an offense specified in paragraph (a), paragraph
  720  (b), or paragraph (c), termination will not be imposed. If the
  721  agency effects a termination under this subsection, the agency
  722  shall issue an immediate termination final order as provided in
  723  subsection (16) pursuant to s. 120.569(2)(n).
  724         (14) If the provider has been suspended or terminated from
  725  participation in the Medicaid program or the Medicare program by
  726  the Federal Government or any state, the agency must immediately
  727  suspend or terminate, as appropriate, the provider’s
  728  participation in this state’s Medicaid program for a period no
  729  less than that imposed by the Federal Government or any other
  730  state, and may not enroll such provider in this state’s Medicaid
  731  program while such foreign suspension or termination remains in
  732  effect. The agency shall also immediately suspend or terminate,
  733  as appropriate, a provider’s participation in this state’s
  734  Medicaid program if the provider participated or acquiesced in
  735  any action for which any principal, officer, director, agent,
  736  managing employee, or affiliated person of the provider, or any
  737  partner or shareholder having an ownership interest in the
  738  provider equal to 5 percent or greater, was suspended or
  739  terminated from participating in the Medicaid program or the
  740  Medicare program by the Federal Government or any state. This
  741  sanction is in addition to all other remedies provided by law.
  742  If the agency suspends or terminates a provider’s participation
  743  in the state’s Medicaid program under this subsection, the
  744  agency shall issue an immediate suspension or immediate
  745  termination order as provided in subsection (16).
  746         (15) The agency shall seek a remedy provided by law,
  747  including, but not limited to, any remedy provided in
  748  subsections (13) and (16) and s. 812.035, if:
  749         (a) The provider’s license has not been renewed, or has
  750  been revoked, suspended, or terminated, for cause, by the
  751  licensing agency of any state;
  752         (b) The provider has failed to make available or has
  753  refused access to Medicaid-related records to an auditor,
  754  investigator, or other authorized employee or agent of the
  755  agency, the Attorney General, a state attorney, or the Federal
  756  Government;
  757         (c) The provider has not furnished or has failed to make
  758  available such Medicaid-related records as the agency has found
  759  necessary to determine whether Medicaid payments are or were due
  760  and the amounts thereof;
  761         (d) The provider has failed to maintain medical records
  762  made at the time of service, or prior to service if prior
  763  authorization is required, demonstrating the necessity and
  764  appropriateness of the goods or services rendered;
  765         (e) The provider is not in compliance with provisions of
  766  Medicaid provider publications that have been adopted by
  767  reference as rules in the Florida Administrative Code; with
  768  provisions of state or federal laws, rules, or regulations; with
  769  provisions of the provider agreement between the agency and the
  770  provider; or with certifications found on claim forms or on
  771  transmittal forms for electronically submitted claims that are
  772  submitted by the provider or authorized representative, as such
  773  provisions apply to the Medicaid program;
  774         (f) The provider or person who ordered or prescribed the
  775  care, services, or supplies has furnished, or ordered the
  776  furnishing of, goods or services to a recipient which are
  777  inappropriate, unnecessary, excessive, or harmful to the
  778  recipient or are of inferior quality;
  779         (g) The provider has demonstrated a pattern of failure to
  780  provide goods or services that are medically necessary;
  781         (h) The provider or an authorized representative of the
  782  provider, or a person who ordered or prescribed the goods or
  783  services, has submitted or caused to be submitted false or a
  784  pattern of erroneous Medicaid claims;
  785         (i) The provider or an authorized representative of the
  786  provider, or a person who has ordered or prescribed the goods or
  787  services, has submitted or caused to be submitted a Medicaid
  788  provider enrollment application, a request for prior
  789  authorization for Medicaid services, a drug exception request,
  790  or a Medicaid cost report that contains materially false or
  791  incorrect information;
  792         (j) The provider or an authorized representative of the
  793  provider has collected from or billed a recipient or a
  794  recipient’s responsible party improperly for amounts that should
  795  not have been so collected or billed by reason of the provider’s
  796  billing the Medicaid program for the same service;
  797         (k) The provider or an authorized representative of the
  798  provider has included in a cost report costs that are not
  799  allowable under a Florida Title XIX reimbursement plan, after
  800  the provider or authorized representative had been advised in an
  801  audit exit conference or audit report that the costs were not
  802  allowable;
  803         (l) The provider is charged by information or indictment
  804  with fraudulent billing practices or an offense under subsection
  805  (13). The sanction applied for this reason is limited to
  806  suspension of the provider’s participation in the Medicaid
  807  program for the duration of the indictment unless the provider
  808  is found guilty pursuant to the information or indictment;
  809         (m) The provider or a person who has ordered or prescribed
  810  the goods or services is found liable for negligent practice
  811  resulting in death or injury to the provider’s patient;
  812         (n) The provider fails to demonstrate that it had available
  813  during a specific audit or review period sufficient quantities
  814  of goods, or sufficient time in the case of services, to support
  815  the provider’s billings to the Medicaid program;
  816         (o) The provider has failed to comply with the notice and
  817  reporting requirements of s. 409.907;
  818         (p) The agency has received reliable information of patient
  819  abuse or neglect or of any act prohibited by s. 409.920; or
  820         (q) The provider has failed to comply with an agreed-upon
  821  repayment schedule.
  822  
  823  A provider is subject to sanctions for violations of this
  824  subsection as the result of actions or inactions of the
  825  provider, or actions or inactions of any principal, officer,
  826  director, agent, managing employee, or affiliated person of the
  827  provider, or any partner or shareholder having an ownership
  828  interest in the provider equal to 5 percent or greater, in which
  829  the provider participated or acquiesced. If the agency
  830  immediately suspends or immediately terminates a provider under
  831  this subsection, the agency shall issue an immediate suspension
  832  or immediate termination order as provided in subsection (16).
  833         (16) The agency shall impose any of the following sanctions
  834  or disincentives on a provider or a person for any of the acts
  835  described in subsection (15):
  836         (a) Suspension for a specific period of time of not more
  837  than 1 year. Suspension shall preclude participation in the
  838  Medicaid program, which includes any action that results in a
  839  claim for payment to the Medicaid program as a result of
  840  furnishing, supervising a person who is furnishing, or causing a
  841  person to furnish goods or services.
  842         (b) Termination for a specific period of time of from more
  843  than 1 year to 20 years. Termination shall preclude
  844  participation in the Medicaid program, which includes any action
  845  that results in a claim for payment to the Medicaid program as a
  846  result of furnishing, supervising a person who is furnishing, or
  847  causing a person to furnish goods or services.
  848         (c) Imposition of a fine of up to $5,000 for each
  849  violation. Each day that an ongoing violation continues, such as
  850  refusing to furnish Medicaid-related records or refusing access
  851  to records, is considered, for the purposes of this section, to
  852  be a separate violation. Each instance of improper billing of a
  853  Medicaid recipient; each instance of including an unallowable
  854  cost on a hospital or nursing home Medicaid cost report after
  855  the provider or authorized representative has been advised in an
  856  audit exit conference or previous audit report of the cost
  857  unallowability; each instance of furnishing a Medicaid recipient
  858  goods or professional services that are inappropriate or of
  859  inferior quality as determined by competent peer judgment; each
  860  instance of knowingly submitting a materially false or erroneous
  861  Medicaid provider enrollment application, request for prior
  862  authorization for Medicaid services, drug exception request, or
  863  cost report; each instance of inappropriate prescribing of drugs
  864  for a Medicaid recipient as determined by competent peer
  865  judgment; and each false or erroneous Medicaid claim leading to
  866  an overpayment to a provider is considered, for the purposes of
  867  this section, to be a separate violation.
  868         (d) Immediate suspension, if the agency has received
  869  information of patient abuse or neglect, or of any act
  870  prohibited by s. 409.920, or any conduct listed in subsection
  871  (13) or subsection (14). Upon suspension, the agency must issue
  872  an immediate suspension final order, which shall state that the
  873  agency has reasonable cause to believe that the provider,
  874  person, or entity named is engaging in or has engaged in patient
  875  abuse or neglect, any act prohibited by s. 409.920, or any
  876  conduct listed in subsection (13) or subsection (14). The order
  877  shall provide notice of administrative hearing rights under ss.
  878  120.569 and 120.57 and is effective immediately upon notice to
  879  the provider, person, or entity under s. 120.569(2)(n).
  880         (e)Immediate termination, if the agency has received
  881  information of a conviction of patient abuse or neglect, any act
  882  prohibited by s. 409.920, or any conduct listed in subsection
  883  (13) or subsection (14). Upon termination, the agency must issue
  884  an immediate termination order, which shall state that the
  885  agency has reasonable cause to believe that the provider,
  886  person, or entity named has been convicted of patient abuse or
  887  neglect, any act prohibited by s. 409.920, or any conduct listed
  888  in subsection (13) or subsection (14). The termination order
  889  shall provide notice of administrative hearing rights under ss.
  890  120.569 and 120.57 and is effective immediately upon notice to
  891  the provider, person, or entity.
  892         (f)(e) A fine, not to exceed $10,000, for a violation of
  893  paragraph (15)(i).
  894         (g)(f) Imposition of liens against provider assets,
  895  including, but not limited to, financial assets and real
  896  property, not to exceed the amount of fines or recoveries
  897  sought, upon entry of an order determining that such moneys are
  898  due or recoverable.
  899         (h)(g) Prepayment reviews of claims for a specified period
  900  of time.
  901         (i)(h) Comprehensive followup reviews of providers every 6
  902  months to ensure that they are billing Medicaid correctly.
  903         (j)(i) Corrective-action plans that would remain in effect
  904  for providers for up to 3 years and that would be monitored by
  905  the agency every 6 months while in effect.
  906         (k)(j) Other remedies as permitted by law to effect the
  907  recovery of a fine or overpayment.
  908  
  909  The Secretary of Health Care Administration may make a
  910  determination that imposition of a sanction or disincentive is
  911  not in the best interest of the Medicaid program, in which case
  912  a sanction or disincentive shall not be imposed.
  913         (17) In determining the appropriate administrative sanction
  914  to be applied, or the duration of any suspension or termination,
  915  the agency shall consider:
  916         (a) The seriousness and extent of the violation or
  917  violations.
  918         (b) Any prior history of violations by the provider
  919  relating to the delivery of health care programs which resulted
  920  in either a criminal conviction or in administrative sanction or
  921  penalty.
  922         (c) Evidence of continued violation within the provider’s
  923  management control of Medicaid statutes, rules, regulations, or
  924  policies after written notification to the provider of improper
  925  practice or instance of violation.
  926         (d) The effect, if any, on the quality of medical care
  927  provided to Medicaid recipients as a result of the acts of the
  928  provider.
  929         (e) Any action by a licensing agency respecting the
  930  provider in any state in which the provider operates or has
  931  operated.
  932         (f) The apparent impact on access by recipients to Medicaid
  933  services if the provider is suspended or terminated, in the best
  934  judgment of the agency.
  935  
  936  The agency shall document the basis for all sanctioning actions
  937  and recommendations.
  938         (18) The agency may take action to sanction, suspend, or
  939  terminate a particular provider working for a group provider,
  940  and may suspend or terminate Medicaid participation at a
  941  specific location, rather than or in addition to taking action
  942  against an entire group.
  943         (19) The agency shall establish a process for conducting
  944  followup reviews of a sampling of providers who have a history
  945  of overpayment under the Medicaid program. This process must
  946  consider the magnitude of previous fraud or abuse and the
  947  potential effect of continued fraud or abuse on Medicaid costs.
  948         (20) In making a determination of overpayment to a
  949  provider, the agency must use accepted and valid auditing,
  950  accounting, analytical, statistical, or peer-review methods, or
  951  combinations thereof. Appropriate statistical methods may
  952  include, but are not limited to, sampling and extension to the
  953  population, parametric and nonparametric statistics, tests of
  954  hypotheses, and other generally accepted statistical methods.
  955  Appropriate analytical methods may include, but are not limited
  956  to, reviews to determine variances between the quantities of
  957  products that a provider had on hand and available to be
  958  purveyed to Medicaid recipients during the review period and the
  959  quantities of the same products paid for by the Medicaid program
  960  for the same period, taking into appropriate consideration sales
  961  of the same products to non-Medicaid customers during the same
  962  period. In meeting its burden of proof in any administrative or
  963  court proceeding, the agency may introduce the results of such
  964  statistical methods as evidence of overpayment.
  965         (21) When making a determination that an overpayment has
  966  occurred, the agency shall prepare and issue an audit report to
  967  the provider showing the calculation of overpayments.
  968         (22) The audit report, supported by agency work papers,
  969  showing an overpayment to a provider constitutes evidence of the
  970  overpayment. A provider may not present or elicit testimony,
  971  either on direct examination or cross-examination in any court
  972  or administrative proceeding, regarding the purchase or
  973  acquisition by any means of drugs, goods, or supplies; sales or
  974  divestment by any means of drugs, goods, or supplies; or
  975  inventory of drugs, goods, or supplies, unless such acquisition,
  976  sales, divestment, or inventory is documented by written
  977  invoices, written inventory records, or other competent written
  978  documentary evidence maintained in the normal course of the
  979  provider’s business. Notwithstanding the applicable rules of
  980  discovery, all documentation that will be offered as evidence at
  981  an administrative hearing on a Medicaid overpayment must be
  982  exchanged by all parties at least 14 days before the
  983  administrative hearing or must be excluded from consideration.
  984         (23)(a) In an audit or investigation of a violation
  985  committed by a provider which is conducted pursuant to this
  986  section, the agency is entitled to recover all investigative,
  987  legal, and expert witness costs if the agency’s findings were
  988  not contested by the provider or, if contested, the agency
  989  ultimately prevailed.
  990         (b) The agency has the burden of documenting the costs,
  991  which include salaries and employee benefits and out-of-pocket
  992  expenses. The amount of costs that may be recovered must be
  993  reasonable in relation to the seriousness of the violation and
  994  must be set taking into consideration the financial resources,
  995  earning ability, and needs of the provider, who has the burden
  996  of demonstrating such factors.
  997         (c) The provider may pay the costs over a period to be
  998  determined by the agency if the agency determines that an
  999  extreme hardship would result to the provider from immediate
 1000  full payment. Any default in payment of costs may be collected
 1001  by any means authorized by law.
 1002         (24) If the agency imposes an administrative sanction
 1003  pursuant to subsection (13), subsection (14), or subsection
 1004  (15), except paragraphs (15)(e) and (o), upon any provider or
 1005  any principal, officer, director, agent, managing employee, or
 1006  affiliated person of the provider who is regulated by another
 1007  state entity, the agency shall notify that other entity of the
 1008  imposition of the sanction within 5 business days. Such
 1009  notification must include the provider’s or person’s name and
 1010  license number and the specific reasons for sanction.
 1011         (25)(a) The agency shall withhold Medicaid payments, in
 1012  whole or in part, to a provider upon receipt of reliable
 1013  evidence that the circumstances giving rise to the need for a
 1014  withholding of payments involve fraud, willful
 1015  misrepresentation, or abuse under the Medicaid program, or a
 1016  crime committed while rendering goods or services to Medicaid
 1017  recipients. If the provider is not paid within 14 days after the
 1018  provider receives such evidence, interest shall accrue at a rate
 1019  of 10 percent a year it is determined that fraud, willful
 1020  misrepresentation, abuse, or a crime did not occur, the payments
 1021  withheld must be paid to the provider within 14 days after such
 1022  determination with interest at the rate of 10 percent a year.
 1023  Any money withheld in accordance with this paragraph shall be
 1024  placed in a suspended account, readily accessible to the agency,
 1025  so that any payment ultimately due the provider shall be made
 1026  within 14 days.
 1027         (b) The agency shall deny payment, or require repayment, if
 1028  the goods or services were furnished, supervised, or caused to
 1029  be furnished by a person who has been convicted of a crime under
 1030  subsection (13) or who has been suspended or terminated from the
 1031  Medicaid program or Medicare program by the Federal Government
 1032  or any state.
 1033         (c) Overpayments owed to the agency bear interest at the
 1034  rate of 10 percent per year from the date of determination of
 1035  the overpayment by the agency, and payment arrangements for
 1036  overpayments and fines must be made within 35 days after the
 1037  date of the final order at the conclusion of legal proceedings.
 1038  A provider who does not enter into or adhere to an agreed-upon
 1039  repayment schedule may be terminated by the agency for
 1040  nonpayment or partial payment.
 1041         (d) The agency, upon entry of a final agency order, a
 1042  judgment or order of a court of competent jurisdiction, or a
 1043  stipulation or settlement, may collect the moneys owed by all
 1044  means allowable by law, including, but not limited to, notifying
 1045  any fiscal intermediary of Medicare benefits that the state has
 1046  a superior right of payment. Upon receipt of such written
 1047  notification, the Medicare fiscal intermediary shall remit to
 1048  the state the sum claimed.
 1049         (e) The agency may institute amnesty programs to allow
 1050  Medicaid providers the opportunity to voluntarily repay
 1051  overpayments. The agency may adopt rules to administer such
 1052  programs.
 1053         (26) The agency may impose administrative sanctions against
 1054  a Medicaid recipient, or the agency may seek any other remedy
 1055  provided by law, including, but not limited to, the remedies
 1056  provided in s. 812.035, if the agency finds that a recipient has
 1057  engaged in solicitation in violation of s. 409.920 or that the
 1058  recipient has otherwise abused the Medicaid program.
 1059         (27) When the Agency for Health Care Administration has
 1060  made a probable cause determination and alleged that an
 1061  overpayment to a Medicaid provider has occurred, the agency,
 1062  after notice to the provider, shall:
 1063         (a) Withhold, and continue to withhold during the pendency
 1064  of an administrative hearing pursuant to chapter 120, any
 1065  medical assistance reimbursement payments until such time as the
 1066  overpayment is recovered, unless within 30 days after receiving
 1067  notice thereof the provider:
 1068         1. Makes repayment in full; or
 1069         2. Establishes a repayment plan that is satisfactory to the
 1070  Agency for Health Care Administration.
 1071         (b) Withhold, and continue to withhold during the pendency
 1072  of an administrative hearing pursuant to chapter 120, medical
 1073  assistance reimbursement payments if the terms of a repayment
 1074  plan are not adhered to by the provider.
 1075         (28) Venue for all Medicaid program integrity overpayment
 1076  cases shall lie in Leon County, at the discretion of the agency.
 1077         (29) Notwithstanding other provisions of law, the agency
 1078  and the Medicaid Fraud Control Unit of the Department of Legal
 1079  Affairs may review a provider’s Medicaid-related and non
 1080  Medicaid-related records in order to determine the total output
 1081  of a provider’s practice to reconcile quantities of goods or
 1082  services billed to Medicaid with quantities of goods or services
 1083  used in the provider’s total practice.
 1084         (30) The agency shall terminate a provider’s participation
 1085  in the Medicaid program if the provider fails to reimburse an
 1086  overpayment or fine that has been determined by final order, not
 1087  subject to further appeal, within 35 days after the date of the
 1088  final order, unless the provider and the agency have entered
 1089  into a repayment agreement.
 1090         (31) If a provider requests an administrative hearing
 1091  pursuant to chapter 120, such hearing must be conducted within
 1092  90 days following assignment of an administrative law judge,
 1093  absent exceptionally good cause shown as determined by the
 1094  administrative law judge or hearing officer. Upon issuance of a
 1095  final order, the outstanding balance of the amount determined to
 1096  constitute the overpayment or fine shall become due. If a
 1097  provider fails to make payments in full, fails to enter into a
 1098  satisfactory repayment plan, or fails to comply with the terms
 1099  of a repayment plan or settlement agreement, the agency shall
 1100  withhold medical assistance reimbursement payments until the
 1101  amount due is paid in full.
 1102         (32) Duly authorized agents and employees of the agency
 1103  shall have the power to inspect, during normal business hours,
 1104  the records of any pharmacy, wholesale establishment, or
 1105  manufacturer, or any other place in which drugs and medical
 1106  supplies are manufactured, packed, packaged, made, stored, sold,
 1107  or kept for sale, for the purpose of verifying the amount of
 1108  drugs and medical supplies ordered, delivered, or purchased by a
 1109  provider. The agency shall provide at least 2 business days’
 1110  prior notice of any such inspection. The notice must identify
 1111  the provider whose records will be inspected, and the inspection
 1112  shall include only records specifically related to that
 1113  provider.
 1114         (33) In accordance with federal law, Medicaid recipients
 1115  convicted of a crime pursuant to 42 U.S.C. s. 1320a-7b may be
 1116  limited, restricted, or suspended from Medicaid eligibility for
 1117  a period not to exceed 1 year, as determined by the agency head
 1118  or designee.
 1119         (34) To deter fraud and abuse in the Medicaid program, the
 1120  agency may limit the number of Schedule II and Schedule III
 1121  refill prescription claims submitted from a pharmacy provider.
 1122  The agency shall limit the allowable amount of reimbursement of
 1123  prescription refill claims for Schedule II and Schedule III
 1124  pharmaceuticals if the agency or the Medicaid Fraud Control Unit
 1125  determines that the specific prescription refill was not
 1126  requested by the Medicaid recipient or authorized representative
 1127  for whom the refill claim is submitted or was not prescribed by
 1128  the recipient’s medical provider or physician. Any such refill
 1129  request must be consistent with the original prescription.
 1130         (35) The Office of Program Policy Analysis and Government
 1131  Accountability shall provide a report to the President of the
 1132  Senate and the Speaker of the House of Representatives on a
 1133  biennial basis, beginning January 31, 2006, on the agency’s
 1134  efforts to prevent, detect, and deter, as well as recover funds
 1135  lost to, fraud and abuse in the Medicaid program.
 1136         (36) At least three times a year, the agency shall provide
 1137  to each Medicaid recipient or his or her representative an
 1138  explanation of benefits in the form of a letter that is mailed
 1139  to the most recent address of the recipient on the record with
 1140  the Department of Children and Family Services. The explanation
 1141  of benefits must include the patient’s name, the name of the
 1142  health care provider and the address of the location where the
 1143  service was provided, a description of all services billed to
 1144  Medicaid in terminology that should be understood by a
 1145  reasonable person, and information on how to report
 1146  inappropriate or incorrect billing to the agency or other law
 1147  enforcement entities for review or investigation. At least once
 1148  a year, the letter also must include information on how to
 1149  report criminal Medicaid fraud, the Medicaid Fraud Control
 1150  Unit’s toll-free hotline number, and information about the
 1151  rewards available under s. 409.9203. The explanation of benefits
 1152  may not be mailed for Medicaid independent laboratory services
 1153  as described in s. 409.905(7) or for Medicaid certified match
 1154  services as described in ss. 409.9071 and 1011.70.
 1155         (37) The agency shall post on its website a current list of
 1156  each Medicaid provider, including any principal, officer,
 1157  director, agent, managing employee, or affiliated person of the
 1158  provider, or any partner or shareholder having an ownership
 1159  interest in the provider equal to 5 percent or greater, who has
 1160  been terminated for cause from the Medicaid program or
 1161  sanctioned under this section. The list must be searchable by a
 1162  variety of search parameters and provide for the creation of
 1163  formatted lists that may be printed or imported into other
 1164  applications, including spreadsheets. The agency shall update
 1165  the list at least monthly.
 1166         (38) In order to improve the detection of health care
 1167  fraud, use technology to prevent and detect fraud, and maximize
 1168  the electronic exchange of health care fraud information, the
 1169  agency shall:
 1170         (a) Compile, maintain, and publish on its website a
 1171  detailed list of all state and federal databases that contain
 1172  health care fraud information and update the list at least
 1173  biannually;
 1174         (b) Develop a strategic plan to connect all databases that
 1175  contain health care fraud information to facilitate the
 1176  electronic exchange of health information between the agency,
 1177  the Department of Health, the Department of Law Enforcement, and
 1178  the Attorney General’s Office. The plan must include recommended
 1179  standard data formats, fraud identification strategies, and
 1180  specifications for the technical interface between state and
 1181  federal health care fraud databases;
 1182         (c) Monitor innovations in health information technology,
 1183  specifically as it pertains to Medicaid fraud prevention and
 1184  detection; and
 1185         (d) Periodically publish policy briefs that highlight
 1186  available new technology to prevent or detect health care fraud
 1187  and projects implemented by other states, the private sector, or
 1188  the Federal Government which use technology to prevent or detect
 1189  health care fraud.
 1190         Section 8. Subsection (5) is added to section 409.9203,
 1191  Florida Statutes, to read:
 1192         409.9203 Rewards for reporting Medicaid fraud.—
 1193         (5)An employee of the Agency for Health Care
 1194  Administration, the Department of Legal Affairs, the Department
 1195  of Health, or the Department of Law Enforcement whose job
 1196  responsibilities include the prevention, detection, and
 1197  prosecution of Medicaid fraud is not eligible to receive a
 1198  reward under this section.
 1199         Section 9. Subsection (8) is added to section 456.001,
 1200  Florida Statutes, to read:
 1201         456.001 Definitions.—As used in this chapter, the term:
 1202         (8)“Affiliate” or “affiliated person” means any person who
 1203  directly or indirectly manages, controls, or oversees the
 1204  operation of a corporation or other business entity, regardless
 1205  of whether such person is a partner, shareholder, owner,
 1206  officer, director, or agent of the entity.
 1207         Section 10. Present subsections (7) through (11) of section
 1208  456.041, Florida Statutes, are renumbered as subsections (8)
 1209  through (12), respectively, a new subsection (7) is added to
 1210  that section, and paragraph (c) of subsection (1) and
 1211  subsections (2) and (3) of that section are amended, to read:
 1212         456.041 Practitioner profile; creation.—
 1213         (1)
 1214         (c) Within 30 calendar days after receiving an update of
 1215  information required for the practitioner’s profile, the
 1216  department shall update the practitioner’s profile in accordance
 1217  with the requirements of subsection (9) (7).
 1218         (2) Beginning July 1, 2010, on the profile published under
 1219  subsection (1), the department shall include indicate if the
 1220  information provided under s. 456.039(1)(a)7. or s.
 1221  456.0391(1)(a)7. and indicate if the information is or is not
 1222  corroborated by a criminal history records check conducted
 1223  according to this subsection. The department must include in
 1224  each practitioner’s profile the following statement: “The
 1225  criminal history information, if any exists, may be incomplete.
 1226  Federal criminal history information is not available to the
 1227  public.” The department, or the board having regulatory
 1228  authority over the practitioner acting on behalf of the
 1229  department, shall investigate any information received by the
 1230  department or the board.
 1231         (3) Beginning July 1, 2010, the department shall include in
 1232  each practitioner’s profile any open administrative complaint
 1233  filed with the department against the practitioner in which
 1234  probable cause has been found. The Department of Health shall
 1235  include in each practitioner’s practitioner profile that
 1236  criminal information that directly relates to the practitioner’s
 1237  ability to competently practice his or her profession. The
 1238  department must include in each practitioner’s practitioner
 1239  profile the following statement: “The criminal history
 1240  information, if any exists, may be incomplete; federal criminal
 1241  history information is not available to the public.” The
 1242  department shall provide in each practitioner profile, for every
 1243  final disciplinary action taken against the practitioner, an
 1244  easy-to-read narrative description that explains the
 1245  administrative complaint filed against the practitioner and the
 1246  final disciplinary action imposed on the practitioner. The
 1247  department shall include a hyperlink to each final order listed
 1248  in its website report of dispositions of recent disciplinary
 1249  actions taken against practitioners.
 1250         (7)Beginning July 1, 2010, the department shall include in
 1251  each practitioner’s profile detailed information about each
 1252  arrest related to that practitioner. The department must include
 1253  in each practitioner’s profile the following statement: “The
 1254  arrest information, if any exists, may be incomplete.”
 1255         Section 11. Section 456.0635, Florida Statutes, is amended
 1256  to read:
 1257         456.0635 Health care Medicaid fraud; disqualification for
 1258  license, certificate, or registration.—
 1259         (1) Medicaid Fraud in the practice of a health care
 1260  profession is prohibited.
 1261         (2) Each board within the jurisdiction of the department,
 1262  or the department if there is no board, shall refuse to admit a
 1263  candidate to any examination and refuse to issue or renew a
 1264  license, certificate, or registration to any applicant if the
 1265  candidate or applicant or any principal, officer, agent,
 1266  managing employee, or affiliated person of the applicant, has
 1267  been:
 1268         (a) Has been convicted of, or entered a plea of guilty or
 1269  nolo contendere to, regardless of adjudication, a felony under
 1270  chapter 409, chapter 817, chapter 893, or a similar felony
 1271  offense committed in another state or jurisdiction 21 U.S.C. ss.
 1272  801-970, or 42 U.S.C. ss. 1395-1396, unless the sentence and any
 1273  subsequent period of probation for such conviction or pleas
 1274  ended: more than 15 years prior to the date of the application;
 1275         1.For felonies of the first or second degree more than 15
 1276  years before the date of application.
 1277         2.For felonies of the third degree more than 10 years
 1278  before the date of application, except for felonies of the third
 1279  degree under s. 893.13(6)(a).
 1280         3.For felonies of the third degree under s. 893.13(6)(a),
 1281  more than 5 years before the date of application.
 1282         4.For felonies in which the defendant entered a plea of
 1283  guilty or nolo contendere in an agreement with the court to
 1284  enter a pretrial intervention or drug diversion program, the
 1285  department shall not approve or deny the application for a
 1286  license, certificate, or registration until the final resolution
 1287  of the case.
 1288         (b)Has been convicted of, or entered a plea of guilty or
 1289  nolo contendere to, regardless of adjudication, a felony under
 1290  21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396, unless the
 1291  sentence and any subsequent period of probation for such
 1292  conviction or plea ended more than 15 years before the date of
 1293  the application;
 1294         (c)(b)Has been terminated for cause from the Florida
 1295  Medicaid program pursuant to s. 409.913, unless the applicant
 1296  has been in good standing with the Florida Medicaid program for
 1297  the most recent 5 years;
 1298         (d)(c)Has been terminated for cause, pursuant to the
 1299  appeals procedures established by the state or Federal
 1300  Government, from any other state Medicaid program or the federal
 1301  Medicare program, unless the applicant has been in good standing
 1302  with a state Medicaid program or the federal Medicare program
 1303  for the most recent 5 years and the termination occurred at
 1304  least 20 years before prior to the date of the application; or.
 1305         (e)Is currently listed on the United States Department of
 1306  Health and Human Services Office of Inspector General’s List of
 1307  Excluded Individuals and Entities.
 1308         (3)Each board within the jurisdiction of the department,
 1309  or the department if there is no board, shall refuse to renew a
 1310  license, certificate, or registration of any applicant if the
 1311  candidate or applicant or any principal, officer, agent,
 1312  managing employee, or affiliated person of the applicant:
 1313         (a)Has been convicted of, or entered a plea of guilty or
 1314  nolo contendere to, regardless of adjudication, a felony under:
 1315  chapter 409, chapter 817, chapter 893, or a similar felony
 1316  offense committed in another state or jurisdiction since July 1,
 1317  2009.
 1318         (b)Has been convicted of, or entered a plea of guilty or
 1319  nolo contendere to, regardless of adjudication, a felony under
 1320  21 U.S.C. ss. 801-970, or 42 U.S.C. ss. 1395-1396 since July 1,
 1321  2009.
 1322         (c)Has been terminated for cause from the Florida Medicaid
 1323  program pursuant to s. 409.913, unless the applicant has been in
 1324  good standing with the Florida Medicaid program for the most
 1325  recent 5 years.
 1326         (d)Has been terminated for cause, pursuant to the appeals
 1327  procedures established by the state, from any other state
 1328  Medicaid program, unless the applicant has been in good standing
 1329  with a state Medicaid program for the most recent 5 years and
 1330  the termination occurred at least 20 years before the date of
 1331  the application.
 1332         (e)Is currently listed on the United States Department of
 1333  Health and Human Services Office of Inspector General’s List of
 1334  Excluded Individuals and Entities.
 1335         (f)For felonies in which the defendant entered a plea of
 1336  guilty or nolo contendere in an agreement with the court to
 1337  enter a pretrial intervention or drug diversion program, the
 1338  department shall not approve or deny the application for a
 1339  renewal of a license, certificate, or registration until the
 1340  final resolution of the case.
 1341         (4)(3) Licensed health care practitioners shall report
 1342  allegations of Medicaid fraud to the department, regardless of
 1343  the practice setting in which the alleged Medicaid fraud
 1344  occurred.
 1345         (5)(4) The acceptance by a licensing authority of a
 1346  candidate’s relinquishment of a license which is offered in
 1347  response to or anticipation of the filing of administrative
 1348  charges alleging Medicaid fraud or similar charges constitutes
 1349  the permanent revocation of the license.
 1350         (6)The department shall adopt rules to administer the
 1351  provisions of this section related to denial of licensure
 1352  renewal.
 1353         Section 12. Paragraph (kk) of subsection (1) of section
 1354  456.072, Florida Statutes, is amended to read:
 1355         456.072 Grounds for discipline; penalties; enforcement.—
 1356         (1) The following acts shall constitute grounds for which
 1357  the disciplinary actions specified in subsection (2) may be
 1358  taken:
 1359         (kk) Being terminated from the state Medicaid program
 1360  pursuant to s. 409.913 or, any other state Medicaid program, or
 1361  excluded from the federal Medicare program, unless eligibility
 1362  to participate in the program from which the practitioner was
 1363  terminated has been restored.
 1364         Section 13. Subsection (13) of section 456.073, Florida
 1365  Statutes, is amended to read:
 1366         456.073 Disciplinary proceedings.—Disciplinary proceedings
 1367  for each board shall be within the jurisdiction of the
 1368  department.
 1369         (13) Notwithstanding any provision of law to the contrary,
 1370  an administrative complaint against a licensee shall be filed
 1371  within 6 years after the time of the incident or occurrence
 1372  giving rise to the complaint against the licensee. If such
 1373  incident or occurrence involved fraud related to the Medicaid
 1374  program, criminal actions, diversion of controlled substances,
 1375  sexual misconduct, or impairment by the licensee, this
 1376  subsection does not apply to bar initiation of an investigation
 1377  or filing of an administrative complaint beyond the 6-year
 1378  timeframe. In those cases covered by this subsection in which it
 1379  can be shown that fraud, concealment, or intentional
 1380  misrepresentation of fact prevented the discovery of the
 1381  violation of law, the period of limitations is extended forward,
 1382  but in no event to exceed 12 years after the time of the
 1383  incident or occurrence.
 1384         Section 14. Subsection (1) of section 456.074, Florida
 1385  Statutes, is amended to read:
 1386         456.074 Certain health care practitioners; immediate
 1387  suspension of license.—
 1388         (1) The department shall issue an emergency order
 1389  suspending the license of any person licensed in a profession as
 1390  defined in this chapter under chapter 458, chapter 459, chapter
 1391  460, chapter 461, chapter 462, chapter 463, chapter 464, chapter
 1392  465, chapter 466, or chapter 484 who pleads guilty to, is
 1393  convicted or found guilty of, or who enters a plea of nolo
 1394  contendere to, regardless of adjudication, to:
 1395         (a) A felony under chapter 409, chapter 812, chapter 817,
 1396  or chapter 893, chapter 895, chapter 896, or under 21 U.S.C. ss.
 1397  801-970, or under 42 U.S.C. ss. 1395-1396; or
 1398         (b) A misdemeanor or felony under 18 U.S.C. s. 669, ss.
 1399  285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s.
 1400  1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the
 1401  Medicaid program.
 1402         Section 15. This act shall take effect July 1, 2010.


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