65-29.001: Financial Penalties for a Provider's Failure to Comply With a Requirement for Corrective Action (Contracts Not Subject to Rule 65-29.002)
65-29.002: Financial Penalties for a Provider’s Failure to Comply With a Requirement for Corrective Action (Contracts Executed or Amended After ___, 2011)
PURPOSE AND EFFECT: The purpose of this rulemaking is to revise the Department’s rule provisions for including incremental penalty provisions in Department contracts to simplify and streamline the process and to expressly provide for Chapter 120, F.S., remedies.
SUBJECT AREA TO BE ADDRESSED: Financial Penalties for a Provider’s Failure to Comply With a Requirement for Corrective Action.
RULEMAKING AUTHORITY: 402.73(1) FS.
LAW IMPLEMENTED: 402.73(1) FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Paul Sexton, Deputy General Counsel, Office of General Counsel, 1314 Winewood Boulevard, Building 2, Suite 204K, Tallahassee, Florida 32399, paul_sexton@dcf.state.fl.us, (850)922-5216
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
65-29.001 Financial Penalties for a Provider’s Failure to Comply With a Requirement for Corrective Action (Contracts Not Subject to Rule 65-29.002, F.A.C.).
(1) through (10) “No change.”
(11) This rule shall not be applicable to any contract to which Rule 65-29.002, F.A.C., applies.
Rulemaking Specific Authority 402.73(1) FS. Law Implemented 402.73(1) FS. History–New 4-14-02, Amended________.
65-29.002 Financial Penalties for a Provider’s Failure to Comply With a Requirement for Corrective Action (Contracts Executed or amended after________, 2011).
(1) The Department may impose incremental penalties on a provider for any failure to comply with a requirement for corrective action associated with a Department contract.
(a) The Department may issue a written Notice of Requirement for Corrective Action to a Provider, which will advise the Provider of its noncompliance with the contract terms, identify the specific terms affected, the acts or omissions that constitute noncompliance, the nature of the corrective action required, the time limit by which the provider shall accomplish the corrective action, and state that failure to comply with a requirement for corrective action may result in a penalty being imposed pursuant to this Rule.
(b) Upon the Provider’s failure to comply with the requirement for corrective action, the Department may issue a written Notice of Penalty for Failure to Comply with a Requirement for Corrective Action (Notice of Penalty), which will advise the Provider that it has failed to comply with a requirement for corrective action and state that the Department intends to impose a penalty pursuant to this Rule, and state the incremental penalty to be imposed on the amount that otherwise would be due to the provider for the period of noncompliance. The Notice of Penalty shall provide notice in accordance with the Uniform Rules of Procedure. The penalty shall become due under the terms of the Notice of Penalty or a Final Order issued pursuant to the Uniform Rules of Procedure, whichever applies.
1. A failure to comply that is determined to have a direct effect on client health, welfare or safety shall result in the imposition of an incremental penalty of ten percent (10%) of the total contract payments otherwise due to the provider during the period of noncompliance.
2. A failure to comply involving the provision of service not having a direct effect on client health, welfare or safety shall result in the imposition of an incremental penalty of five percent (5%) of the total contract payments otherwise due to the provider during the period of noncompliance.
3. A failure to comply involving performance of administrative tasks shall result in the imposition of an incremental penalty of two percent (2%) of the total contract payments otherwise due to the provider during the period of noncompliance.
(c) The imposition of a penalty pursuant to this Rule is in addition to other relief that may be available to the Department to address a provider’s failure to provide satisfactory performance and shall not, in any way, prevent the Department from seeking or applying other remedies available to it through law or equity.
(2) All contracts entered into by the Department on and after________, 2011, (the effective date of this rule) and all amendments to Department contracts executed on and after ________, 2011, (the effective date of this rule) shall contain the following provision:
Financial Penalties for Failure to Comply With a Requirement for Corrective Action.
Section 402.73(1), Florida Statutes, requires Department contracts to include provisions for incremental penalties to be imposed by its contract managers on a service provider due to the provider’s failure to comply with a requirement for corrective action. The Department has adopted Rule 65-29.002, F.A.C., entitled “Financial Penalties for a Provider’s Failure to Comply With a Requirement for Corrective Action,” which rule is incorporated herein by reference and made a part hereof as if fully recited herein. Additional terms governing the imposition and collection of the penalty are set forth in Section 402.73, Florida Statutes. The remedies identified in Section 402.73, Florida Statutes, do not limit or restrict the Department’s application of any other remedy available to it in this contract or under law.
(3) The Department will deduct the financial penalty from funds that would otherwise be due to the provider, not to exceed 10 percent of the amount that otherwise would be due to the provider for the period of noncompliance. For purposes of this Rule, the funds that would otherwise be due to the provider shall be those payments that would be due to the provider for full performance of all services in compliance with all contract terms. Termination or expiration of the contract shall not end the provider’s obligation to pay the penalty nor the Department’s authority to obtain payment.
Rulemaking Authority 402.73(1) FS. Law Implemented 402.73(1) FS. History–New________.