Notice of Proposed Rule
AGENCY FOR HEALTH CARE ADMINISTRATION
RULE NO.: RULE TITLE:
59G-9.070
Administrative Sanctions on Providers, Entities, and Persons
PURPOSE AND EFFECT: Since implementation of the rule,
the MPI management team has discussed every sanction to be imposed and has
found some scenarios where the amount of the fines far exceeds what was
expected. As the intent of the rule is to encourage compliance (those providers
who arent going to come into compliance or need more severe punishment will be
recommended for other administrative action), MPI believes several areas need
to have a cap on fines. The rule is being amended to implement these caps.
Additionally, several changes have been prepared in response to the issues that
were raised in the rule challenge (and as a part of the settlement in that
matter). Also, MPI found issues that needed to be changed (either due to error
or for clarity) while conducting training for implementation; these changes are
incorporated in the amended rule. Finally, MPI believed it was important to
clarify in the rule some items that are a part of the bureau protocols but were
not clarified in the rule. This will ensure continued consistency in its
application.
SUMMARY: Rule 59G-9.070, F.A.C., is being amended to
clarify certain terminology to ensure consistency with statutory definitions;
define more clearly when and how sanctions will be imposed; and to define
limits of fines in certain categories.
SUMMARY OF ESTIMATED REGULATORY COSTS: No Statement of
Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding
a statement of estimated regulatory costs, or provide a proposal for a lower
cost regulatory alternative must do so in writing within 21 days of this
notice.
SPECIFIC AUTHORITY: 409.919
FS.
LAW IMPLEMENTED: 409.907
FS., 409.913 FS., 409.9131
FS., 812.035 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS
NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME:
PLACE:
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE
IS: Kimberly Noble, Medicaid Program Integrity,
THE FULL TEXT OF THE PROPOSED RULE IS:
59G-9.070 Administrative Sanctions on Providers,
Entities, and Persons.
(1) PURPOSE: The purpose of this rule is to provide
notice of administrative sanctions and disincentives imposed upon a provider, entity,
or person for each violation of any Medicaid-related law. The Agency shall have
the authority to deviate from the guidelines for the reasons stated within this
rule. Notice of administrative sanctions imposed will be by way of written
correspondence and shall constitute Agency action pursuant to Chapter 120, F.S.
(2) DEFINITIONS: The following terms used within this
rule shall have the meanings as set forth below:
(a) “Abuse” is as defined in Section
409.913(1)(a), F.S.
(b) “Agency” is as defined in Section
409.901(2), F.S.
(c) “Claim” is as defined in Section
409.901(5), F.S., and shall also include per diem payments and the payment of a
capitation rate for a Medicaid recipient. For the purposes of this rule,
"per diem payments” means the total monthly payment to the provider
for a specific recipient.
(d) “Complaint” is as defined in Section
409.913(1)(b), F.S.
(e) An act shall be deemed “Committed”, as
it relates to abuse or neglect of a patient, or of any act prohibited by
Section 409.920, F.S., upon receipt by the Agency of reliable information of
commission of patient abuse or neglect, or of violation of Section 409.920,
F.S.
(f) “Comprehensive follow-up reviews” or
“Follow-up reviews” shall have the same meaning throughout this
rule, and can be used interchangeably. The two phrases mean evaluations of
providers every 6 months, until the Agency determines that the reviews are no
longer required. Such evaluations will result in a determination regarding
whether a further compliance audit, or other regulatory action is required.
(g) “Contemporaneous”, as it relates to a
provider’s requirement to maintain records and produce records upon
request, means records created within the standard and customary timeframe
applicable to the provider’s trade or profession; but not longer than any
timeframe specified in Medicaid laws or the laws that govern the
provider’s profession.
(h)(g) “Conviction” is as defined in Section
409.901(7), F.S.
(i)(h) “Corrective action plan” means the
process or plan by which the provider will ensure future compliance with state
and federal Medicaid laws, the laws that govern the provider’s
profession, or the Medicaid provider agreement. A corrective action plan will
remain in effect until the Agency determines that it is no longer necessary,
but no longer than 3 years. For purposes of this rule, the sanction of a
corrective action plan shall take the form of an "acknowledgement
statement”, “provider education”, a “self audit”,
or a “comprehensive quality assurance program”, all of which are
further described in subsection (10) of this rule.
(j)(i) An “erroneous” claim is an application
for payment from the Medicaid program or its fiscal agent that contains an
inaccuracy.
(k)(j) “Fine” is a monetary sanction. The amount
of a fine shall be as set forth within this rule.
(l)(k) A “false” claim is as provided for in the
Florida False Claims Act set forth in Chapter 68, F.S.
(m)(l) “Fraud” is as defined in paragraph
409.913(1)(c), F.S.
(n)(m) “Medical necessity” or “medically
necessary” is as defined in paragraph 409.913(1)(d), F.S.
(o)(n) “Medicaid-related record” is as defined
in Section 409.901(19), F.S.
(p)(o) “Overpayment” is as defined in Section
409.913(1)(e), F.S.
(q) “Patient Record” means the file
maintained by the provider to document the delivery of goods or services; the
file shall be maintained in the standard and customary practice applicable to
the provider’s trade or profession; but not in a fashion that is contrary
to Medicaid laws or the laws that govern the provider’s profession.
(r)(p) “Patient Record Request” means a request
by the Agency to a provider, entity, or person for Medicaid-related
documentation or information. Such requests are not limited to Agency audits to
determine overpayments or violations. Each requesting document constitutes a
single Patient Record Request. The Agency is not limited to making one Patient
Record Request at a time to a provider, entity, or person. Each request shall
be considered separate and distinct for purposes of this rule.
(s)(q) “Pattern” is defined as follows:
1. As it relates to paragraph (7)(d) of this rule
(generally, failing to maintain Medicaid-related records), a pattern is
sufficiently established if within a single Agency action:
a. There are five or more claims within any one
a patient record for which supporting documentation is not
maintained; or
b. There is more than one patient record for
which no patient record supporting documentation is maintained.
2. As it relates to paragraph (7)(e) of this rule
(generally, failure to comply with the provisions of Medicaid laws, the laws
that govern the provider’s profession, or the Medicaid provider
agreement), a pattern is sufficiently established if within a single Agency
action:
a. The number of individual claims found to be in
violation is greater than 6.25 percent of the total claims that were
reviewed to support are the subject of the Agency action; or
b. The number of individual claims found to be in
violation is greater than 6.25 percent of the claims in a sample that are the
subject of the Agency action, where a sample was used to determine the
appropriateness of the claims to Medicaid;
b.c. The overpayment determination by the Agency is
greater than 6.25 percent of the amount paid for the total claims that were
reviewed to support are the subject of the Agency action.;
or,
d. The overpayment determination by the Agency is
greater than 6.25 percent of the amount paid for the claims in a sample that are
the subject of the Agency action, where a sample was used to determine the
appropriateness of the claims to Medicaid.
3. As it relates to paragraph (7)(g) of this rule
(generally, failing to provide goods or services that are medically necessary),
a pattern is sufficiently established if within a single Agency action:
a. The
number of instances individual claims found to be in violation is
greater than one. one-percent of the total claims that are the
subject of the Agency action;
b. The number of individual claims found to be in
violation is greater than one-percent of the claims in a sample that are the
subject of the Agency action, where a sample was used to determine the
appropriateness of the claims to Medicaid;
c. The overpayment determination by the Agency is
greater than one-percent of the amount paid for the total claims that are the
subject of the Agency action; or,
d. The overpayment determination by the Agency is
greater than one-percent of the amount paid for the claims in a sample that are
the subject of the Agency action, where a sample was used to determine the
appropriateness of the claims to Medicaid.
4. As it relates to paragraph (7)(h) of this rule
(generally, submitting erroneous claims), a pattern is sufficiently established
if within a single Agency action:
a. The number of individual claims found to be
erroneous is greater than 6.25 percent of the total claims that were
reviewed to support are the subject of the Agency action; or
b. The number of erroneous claims identified is
greater than 6.25 percent of the claims in a sample that are the subject of the
Agency action, where a sample was used to determine the appropriateness of the
claims to Medicaid;
b.c. The overpayment determination by the Agency, as a
result of the erroneous claims, is greater than 6.25 percent of the amount paid
for the total claims that were reviewed to support are the subject of
the Agency action.; or,
d. The overpayment determination by the Agency, as a
result of the erroneous claims, is greater than 6.25 percent of the amount paid
for the claims in a sample that are the subject of the Agency action, where a
sample was used to determine the appropriateness of the claims to Medicaid.
(t)(r) “Person” is as defined in Section
409.913(1)(f), F.S.
(u)(s) “Provider” is as defined in Section
409.901(16), F.S. and for purposes of this rule, includes all of the
provider’s locations that have the same base provider number (with
separate locator codes).
(v)(t) “Provider Group” is more than one individual
provider practicing under the same tax identification number, enrolled in the
Medicaid program as a group for billing purposes, and having one or more
locations.
(w)(u) “Sanction” shall be any monetary or
non-monetary penalty imposed upon a provider, entity, or person (e.g., a
provider, entity, or person being suspended from the Medicaid program.) A
monetary sanction under this rule may be referred to as a "fine.” A
sanction may also be referred to as a disincentive.
(x)(v) “Single Agency action” means an audit or
review that results in notice to the provider of violations of Medicaid laws,
the laws that govern the provider’s profession, or the Medicaid provider
agreement.
(y)(w) “Suspension” is a one-year preclusion
from any action that results in a claim for payment to the Medicaid program as
a result of furnishing, supervising a person who is furnishing, or causing a
person to furnish goods or services.
(z)(x) "Termination” is a twenty-year preclusion
from any action that results in a claim for payment to the Medicaid program as
a result of furnishing, supervising a person who is furnishing, or causing a
person to furnish goods or services.
(aa)(y) "Violation” means any omission or act
performed by a provider, entity, or person that is contrary to Medicaid laws,
the laws that govern the provider’s profession, or the Medicaid provider
agreement.
1. For purposes of this rule, each day that an ongoing
violation continues and each instance of an act or omission contrary to a
Medicaid law, a law that governs the provider’s profession, or the
Medicaid provider agreement shall be considered a “separate
violation".
2. For purposes of determining first, second, third,
fourth, fifth, or subsequent violations of this rule:
a. A violation existed even if the matter is resolved
by repayment of an overpayment, settlement agreement, or other means.
b. The same violation means a subsequent determination
by the Agency, that the person, provider, or entity is in violation of the same
provision of state or federal Medicaid laws, the laws that govern the
provider’s profession, or the Medicaid provider agreement.
(3) VIOLATIONS AND SANCTIONS: The identification of
violations given herein is descriptive only. The full language of each
statutory provision cited must be consulted in order to determine the conduct
included.
(4) FACTORS TO BE USED IN DETERMINING LEVEL OF
SANCTION:
(a) Except
for the mandatory suspension and termination provision in subsection (6) of
this rule, when determining the type, amount, and duration of the sanction to
be applied, the Agency shall consider each of the factors set forth in Section
409.913(17), F.S., as mitigation to the sanction set forth in conjunction
with subsection (10) of this rule. This rule does not give any one
listed factor greater importance or weight over any other. However, the Agency
shall have the discretion to rely upon the circumstances of the violation or
violations in conjunction with any one or all of the listed factors to
determine the sanction that is ultimately applied. These factors will also be
utilized for any deviation by the Agency from the sanctions for each violation,
as set forth in subsection (10) of this rule.
(b) For the first agency action against a provider
after
(c) For the second agency action against a provider
after
(c) For all subsequent agency actions against a
provider after
(d) Sanctions only apply at the final agency action.
(e) Where the final agency action results in a final
overpayment determination that is less than $5,000, any fine that is to be
imposed as a result of the violations giving rise to that overpayment shall be
waived.
1. However, where waiving the fine results in no
sanction being imposed, the sanction of a corrective action plan in the form of
a provider acknowledgement statement shall be imposed.
2. Fines that are to be imposed as a result of
violations that do not give rise to an overpayment are not waived.
(f) Where the Agency has instituted an amnesty program
pursuant to Section 409.913(25)(e), F.S., sanctions will not apply.
(5) APPLICATION TO INDIVIDUALS OR LOCATIONS RATHER
THAN TO A PROVIDER GROUP:
(a) Based upon the circumstances present in each
individual matter, the Agency shall have the discretion to take action to
sanction a particular Medicaid provider, entity, or person working for a
Medicaid provider group, or to sanction a specific location, rather than, or in
addition to, taking action against an entire Medicaid provider group.
(b) If the Agency chooses to sanction a particular
(individual) provider, entity, or person working with a Medicaid provider group
or in a particular location, the other members of the Medicaid provider group
and the providers in the other locations must fully cooperate in the audit or
investigation conducted by the Agency, and the Agency must determine if:
1. The individual provider, entity, or person working
with the Medicaid provider group is directly responsible for the violation(s);
2. The Medicaid provider group was unaware of the
actions of the individual provider, entity, or person; and
3. The Agency has not previously taken a preliminary
or final Agency action against the group provider for the same violation(s)
within the past five years from the date of the violation, unless the Agency
determines that the individual provider, entity, or person was responsible for
the prior violation.
(6) MANDATORY TERMINATION OR SUSPENSION: Whenever a
provider has been suspended or terminated from participation in the Medicaid or
Medicare program by the federal government or any state or territory, the
Agency shall immediately suspend (if suspended) or terminate (if terminated),
the provider’s participation in the Florida Medicaid program for a period
no less than that imposed by the federal government or the state or territory,
and shall not enroll such provider in the Florida Medicaid program while such
foreign suspension or termination remains in effect. Additionally, all other
remedies provided by law, including all civil remedies, and other sanctions,
shall apply. [Section 409.913(14), F.S.]
(7) SANCTIONS: Except when the Secretary of the Agency
determines not to impose a sanction, pursuant to Section 409.913(16)(j), F.S.,
sanctions shall be imposed for the following:
(a) The provider’s license has not been renewed
by the licensing agency in
(b) Failure to make available within the timeframe
requested by the Agency or other mutually agreed upon timeframe, or to refuse
access to Medicaid-related records sought by any investigator. [Section
409.913(15)(b), F.S.];
(c) Failure to make available or furnish all Medicaid-related
records, to be used by the Agency in determining whether Medicaid payments are
or were due, and what the appropriate corresponding Medicaid payment amount
should be within the timeframe requested by the Agency or other mutually agreed
upon timeframe. [Section 409.913(15)(c), F.S.];
(d) Failure to maintain contemporaneous
Medicaid-related records and prior authorization records, if prior
authorization is required, that demonstrate both the necessity and
appropriateness of the good or service rendered. [Section 409.913(15)(d),
F.S.];
(e) Failure to comply with the provisions of the
Medicaid provider publications that have been adopted by reference as rules,
Medicaid laws, the requirements and provisions in the provider’s Medicaid
provider agreement, or the certification found on claim forms or transmittal
forms for electronically submitted claims by the provider or authorized
representative. [409.913(15)(e), F.S.];
(f) Furnishing or ordering goods or services that are
out of compliance with the practice standards governing the provider’s
profession, are excessive, of inferior quality, or that are found to be harmful
to the recipient. [Section 409.913(15)(f), F.S.];
(g) A pattern of failure to provide goods or services
that are medically necessary. [Section 409.913(15)(g), F.S.];
(h) Submitting, or causing to be submitted, false or a
pattern of erroneous Medicaid claims. [Section 409.913(15)(h), F.S.];
(i) Submitting, or causing to be submitted, a Medicaid
provider enrollment application or renewal forms, a request for prior
authorization for Medicaid services, or a Medicaid cost report containing
information that is either materially false or materially incorrect. [Section
409.913(15)(i), F.S.];
(j) Collecting or billing a recipient or a
recipient’s responsible party for goods or services improperly. [Section
409.913(15)(j), F.S.];
(k) Including costs in a cost report that are not authorized
allowed under the Medicaid state reimbursement plan or
that are authorized but were disallowed during the audit process, even
though the provider or authorized representative had previously been advised
via an audit exit conference or audit report that the costs were not allowable.
However, if the unallowed costs are the subject of an administrative hearing
pursuant to Chapter 120, F.S., sanctions shall not be imposed. Additionally,
a provider is only considered to have been previously advised that the costs
were not allowable if the provider was advised in writing via an audit exit
conference that the cost is not allowed or has been issued an audit report,
either of which were provided in the previous five years. [Section
409.913(15) (k), F.S.];
(l) Being charged, whether by information or
indictment, with fraudulent billing practices. [Section 409.913(15)(l), F.S.];
(m) A finding or determination that a provider,
entity, or person is negligent for ordering or prescribing a good or service to
a patient, which resulted in the patient’s injury or death. [Section
409.913(15)(m), F.S.];
(n) During a specific audit or review period, failure
to demonstrate sufficient quantities of goods, or sufficient time in the case
of services, that support the corresponding billings or claims made to the
Medicaid program. [Section 409.913(15)(n), F.S.];
(o) Failure to comply with the notice and reporting
requirements of Section 409.907, F.S. [Section 409.913(15)(o), F.S.];
(p) A finding or determination that a provider,
entity, or person committed patient abuse or neglect, or any act prohibited by
Section 409.920, F.S. [Section 409.913(15)(p), F.S.];
(q) Failure to comply with any of the terms of a
previously agreed-upon repayment schedule. [Sections 409.913(15)(q), F.S.];
(8) ADDITIONAL VIOLATIONS SUBJECT TO TERMINATION: In
addition to the termination authority, the Agency shall have the authority to
concurrently seek civil remedies or impose other sanctions.
(a) The Agency shall impose the sanction of
termination for each violation of:
1. Section 409.913(13)(a), F.S. (generally, a provider
is convicted of a criminal offense related to the delivery of any health care
goods or services);
2. Section 409.913(13)(b), F.S. (generally, a provider
is convicted of a criminal offense relating to the practice of the
provider’s profession); or
3. Section 409.913(13)(c), F.S. (generally, a provider
is found by a court, administrative law judge, hearing officer, administrative
or regulatory board, or final agency action to have neglected or physically
abused a patient).
(b) For non-payment or partial payment where monies
are owed to the Agency, and failure to enter into a repayment agreement, in
accordance with Section 409.913(25)(c), F.S. (generally, a provider who has a
debt to the Agency, who has not made full payment, and who fails to enter into
a repayment schedule), the Agency shall impose the sanction of a $5,000 fine;
and, where the provider remains out of compliance for 30 days, suspension; and,
where the provider remains out of compliance for more than 180 days,
termination.
(c) For failure to reimburse an overpayment, in
accordance with Section 409.913(30), F.S. (generally, a provider that fails to
repay an overpayment or enter into a repayment agreement within 35 days after
the date of a final order), the Agency shall impose the sanction of a $5,000
fine; and, where the provider remains out of compliance for 30 days,
suspension; and, where the provider remains out of compliance for more than 180
days, termination.
(9) REPORTING SANCTIONS: The Agency shall report
sanctions in accordance with Section 409.913(24), F.S.
(10) GUIDELINES FOR SANCTIONS.
(a) The Agency’s authority to impose sanctions
on a provider, entity, or person shall be in addition to the Agency’s
authority to recover a determined overpayment, other remedies afforded to the
Agency by law, appropriate referrals to other agencies, and any other
regulatory actions against the provider.
(b) In all instances of violations that are subject to
this rule, the Agency shall have the authority to impose liens against provider
assets, including, but not limited to, financial assets and real property, not
to exceed the amount of fines or recoveries sought, including fees and costs,
upon entry of an order determining that such moneys are due or recoverable.
(c) A violation is considered a:
1. First Violation – If, within the five years
prior to the alleged violation date(s), the provider, entity, or person has not
been deemed by the Agency in a prior Agency action to have committed the same
violation;
2. Second Violation – If, within the five years
prior to the alleged violation date(s), the provider, entity, or person has
once been deemed by the Agency in a prior Agency action to have committed the
same violation.
3. Third Violation – If, within the five years
prior to the alleged violation date(s), the provider, entity, or person has
twice been deemed by the Agency in prior Agency actions to have committed the
same violation.
4. Fourth Violation – If, within the five years
prior to the alleged violation date(s), the provider, entity, or person has
three times been deemed by the Agency in prior Agency actions to have committed
the same violation.
5. Fifth Violation – If, within the five years
prior to the alleged violations date(s), the provider, entity, or person has
four times been deemed by the Agency in prior Agency actions to have committed
the same violation.
6. Subsequent Violation – If, within the five
years prior to the alleged violation date(s) the provider, entity, or person
has, five or more times, been deemed by the Agency in prior Agency actions to
have committed the same violation.
(c) Multiple violations shall result in an increase in
sanctions such that:
1. In the event the Agency determines in a single
Agency action that a provider, entity, or person has committed violations of
more than one section of this rule, the Agency shall cumulatively apply the
sanction guideline associated with each section violated.
2. In the event the Agency determines in a single
action that a provider, entity, or person has committed multiple violations of
one section of this rule, unless the table in Section 10(i) specifies
otherwise, the Agency shall cumulatively apply the applicable sanctions for
each separate violation of the section. However, the Agency shall not apply
multiple violations to increase the level of violation (e.g., – from
First Violation to Second Violation).
(e) For purposes of this rule, as used in the table
below, a “corrective action plan” shall be a written document,
submitted to the Agency, and shall either be an “acknowledgement
statement”, “provider education”, “self audit”,
or a “comprehensive quality assurance program". The Agency will
specify the type of corrective action plan required.
1. An “acknowledgement statement” shall be
a typed document submitted within 15 days of the date of the Agency action that
brought rise to this requirement. The document will acknowledge a requirement
to adhere to the specific state and federal Medicaid laws, the laws that govern
the provider’s profession, or the Medicaid provider agreement that are
the subject of the Agency action. The Agency will confirm receipt of the
statement and either accept or deny it as complying with this rule. If the
acknowledgement statement is not acceptable to the Agency, the provider,
entity, or person will be advised regarding the deficiencies. The provider will
have 10 days to amend the statement.
2. “Provider Education” shall be
successful completion of an educational course or courses that address the
areas of non-compliance as determined by the Agency in the Agency action.
a. The provider, entity, or person will identify one
or more individuals who are the Medicaid policy compliance individuals for the
provider, and must include treating providers involved with the areas of
non-compliance as well as billing staff, who must successfully complete the
required education.
b. The provider will, within 30 days of the date of
the Agency action that brought rise to this requirement, submit for approval
the name of the course, contact information, and a brief description of the course
intended to meet this requirement.
c. The Agency will confirm receipt of the course
information and either accept or deny it as complying with this rule. If the
course is denied by the Agency, the provider, entity, or person will be advised
regarding the reasons for denial. The provider will have 10 days to submit
additional course information.
d. Proof of successful completion of the provider
education must be submitted to the Agency within 90 days of the date of the
Agency action that brought rise to this requirement.
3. A “self-audit” is an audit of the
provider’s claims to Medicaid for a specified period of time (the audit
period) performed by the provider.
a. A self-audit is a detailed and comprehensive
evaluation of the provider’s claims to Medicaid. The audit may be focused
on particular issues or all state and federal Medicaid laws, the laws that
govern the provider’s profession, or the Medicaid provider agreement. The
Agency will specify the audit period as well as issues to be addressed. A summary
of the audit work plan, including the audit methodology, must be submitted to
the Agency within 30 days of the date of the Agency action that brought rise to
this requirement. The self-audit must be completed within 90 days of the date
of the Agency action that brought rise to this requirement, or such other
timeframe as mutually agreed upon by the Agency and the provider. The
self-disclosure of violations will not result in additional sanctions imposed
pursuant to this rule.
b. The provider is required to submit a detailed
listing of paid claims found to be out of compliance with the specified state
and federal Medicaid laws, the laws that govern the provider’s
profession, or the Medicaid provider agreement. The listing shall include the
date of service, type of service (e.g., procedure code), treating provider,
pay-to provider, date the claim was paid, transaction control number (TCN) for
the claim, description of non-compliance, and any other information that would
allow the Agency to verify the claim(s). The provider is also required to
submit a detailed description regarding the audit methodology and overpayment
calculation. The Agency will evaluate the self-audit and determine whether it
is a valid evaluation of the provider’s claims.
c. If the self-audit is accepted by the Agency, the
provider shall be deemed to have been overpaid by the determined amount, and
shall be required to repay that amount in full, or enter in and adhere to a
repayment plan with the Agency, within 30 days of the date of the acceptance of
the self-audit.
d. If the self-audit is not accepted, the provider
will be advised regarding the reasons for denial. The provider will have 30
days to submit additional information to correct the deficiencies.
4. A “comprehensive quality assurance
program” shall monitor the efforts of the provider, entity, or person in
their internal efforts to comply with state and federal Medicaid laws, the laws
that govern the provider’s profession, and the Medicaid provider
agreement.
a. The program shall contain at a minimum the
following elements: identification of the physical location where the provider,
entity, or person takes any action that may cause a claim to Medicaid to be
submitted; contact information regarding the individual or individuals who are
responsible for development, maintenance, implementation, and evaluation of the
program; a separate process flow diagram that includes a step-by-step written
description or flow chart indicating how the program will be developed,
maintained, implemented, and evaluated; a complete description and relevant
time frames of the process for internally maintaining the program, including a
description of how technology, education, and staffing issues will be
addressed; a complete description and relevant time frames of the process for
implementing the program; and a complete description of the process for
monitoring, evaluating, and improving the program.
b. A process flow diagram regarding the development of
the program must be submitted to the Agency within 30 days from the date of the
Agency action and must be updated every 30 days until the comprehensive quality
assurance program is approved by the Agency. A process flow diagram regarding
the maintenance, implementation, and evaluation of the program must be
submitted to the Agency within 90 days from the date of the Agency action and
must be updated every 30 days until the comprehensive quality assurance program
is approved by the Agency.
c. The evaluation process must contain processes for
conducting internal compliance audits, which include reporting of the audit
findings to specific individuals who have the authority to address the
deficiencies, and must include continuous improvement processes. The plan must
also include the frequency and duration of such evaluations.
d. The Agency will review the process flow diagram and
description of the development of the program and either approve the program or
disapprove the program. If the Agency disapproves the program, specific reasons
for the disapproval will be included, and the provider, entity, or individual
shall have 30 days to submit an amended development plan.
e. Upon approval by the Agency of the development
process of the program, the provider, entity, or person shall have 45 days to
implement the program. The provider shall provide written notice to the Agency
indicating that the program has been implemented.
f. The program must remain in effect for the time
period specified in the Agency action and the provider must submit written
progress reports to the Agency every 120 days, for the duration of the program.
5. Failure to timely comply with any of the timeframes
set forth by the Agency, or to adhere to the corrective action plan in
accordance with this section, shall result in a $1000 fine per day of non-compliance.
If a provider remains out of compliance for 30 days, the provider shall also be
suspended from the Medicaid program until the provider is in compliance. If a
provider remains out of compliance for 180 days, the provider shall be
terminated from the Medicaid program.
(f) The Agency’s decision to discontinue
follow-up reviews does not preclude future audits of any dates of service or
issues, and shall not be used by the provider in any action should the Agency
later determine overpayments existed.
(g) For purposes of this rule, as used in the
table below, a “suspension” shall preclude participation in the
Medicaid program for one year from the date of the Agency action. A provider
that is suspended shall not resume participation in the Medicaid program until
the completion of the one-year term. To resume participation, the provider must
submit a written request to the Agency, Bureau of Medicaid Program Integrity,
to be reinstated in the Medicaid program. The request must include a copy of
the notice of suspension issued by the Agency, and a written acknowledgement
regarding whether the violation(s) that brought rise to the suspension has been
remedied. The provider may not resume participation in the Medicaid program
until they receive written confirmation from the Agency indicating that
participation in the Medicaid program has been authorized.
(h) For purposes of this rule, as used in the table
below, a “termination” shall preclude participation in the Medicaid
program for twenty years from the date of the Agency action. A provider who is
terminated shall not resume participation in the Medicaid program until the
completion of the twenty-year term. To resume participation, the provider must
submit a complete and accurate provider enrollment application, which will be
accepted or denied in the standard course of business by the Agency. In
addition to the application, the provider must include a copy of the notice of
termination issued by the Agency, and a written acknowledgement regarding
whether the violation(s) that brought rise to the termination has been
remedied.
(i) Sanctions and disincentives shall apply in
accordance with this rule, as set forth in the table below:
Violation
Type/Section of Rule |
First violation |
Second violation |
Third violation |
Fourth violation |
Fifth and Subsequent violations |
|
|||||
|
(7)(a) The provider’s license has not been
renewed by the licensing agency; or the license has been revoked, suspended, or
terminated, by the licensing agency of any state. [409.913(15) (a), F.S.]; |
For
licensure suspension: suspension
from the Medicaid program for the duration of the licensure suspension;
however, if the licensure suspension is to exceed 1 year and for all other
violations: termination. |
For
licensure suspension: suspension
from the Medicaid program for the duration of the licensure suspension;
however, if the licensure suspension is to exceed 1 year and for all other
violations: termination. |
Termination. |
Termination. |
Termination. |
|
|||||
|
(7)(b) Failure, upon demand, to make available or
refuse access to, Medicaid-related records [409.913(15) (b), F.S.]; |
A
$1,000 fine per record request or instance of refused access; if after 30 days,
the provider is still in violation, suspension until the records are made
available or access is granted; if after 180 days, the provider is still in
violation, termination. |
A
$2,500 fine per record request or instance of refused access; if after 30
days, the provider is still in violation, suspension until the records are
made available or access is granted; if after 180 days, the provider is still
in violation, termination. |
A $5,000 fine per record request or
instance of refused access; if after 30 days, the provider is still in
violation, suspension until the records are made available or access is
granted; if after 180 days, the provider is still in violation, termination. |
A
$5,000 fine per record request or instance of refused access; if after 30
days, the provider is still in violation, suspension until the records are
made available or access is granted; if after 180 days, the provider is still
in violation, termination. |
A
$5,000 fine per record request or instance of refused access; if after 30
days, the provider is still in violation, suspension until the records are
made available or access is granted; if after 180 days, the provider is still
in violation, termination. |
|
|||||
|
(7)(c)
Failure to furnish records, within time frames established by the Agency.
[409.913(15) (c),
F.S.]; |
A
$500 fine per record request; if after 30 days, the provider is still in
violation, suspension until the records are made available; if after 180
days, the provider is still in violation, termination. |
A $1,000 fine per record request; if
after 30 days, the provider is still in violation, suspension until the
records are made available; if after 180 days, the provider is still in
violation, termination. |
A
$2,500 fine per record request; if after 30 days, the provider is still in
violation, suspension until the records are made available; if after 180
days, the provider is still in violation, termination. |
A
$5,000 fine per record request; if after 30 days, the provider is still in
violation, suspension until the records are made available; if after 180
days, the provider is still in violation, termination. |
A
$5,000 fine per record request; if after 30 days, the provider is still in
violation, suspension until the records are made available; if after 180
days, the provider is still in violation, termination. |
|
|||||
(7)(d) Failure to maintain contemporaneous
Medicaid-related records. [409.913(15)(d), F.S.]; |
A
$100 fine per claim for which supporting documentation is not maintained,
not to exceed $1,500 per agency action. For a pattern: a $1000 fine per patient record for
which any of the supporting documentation is not maintained, not to exceed
$3,000 per agency action; and submission of a corrective action plan in
the form of an acknowledgement statement. |
A
$200 fine per claim for which supporting documentation is not maintained,
not to exceed $3,000 per agency action. For a pattern: a $2000 fine per patient record for
which any of the supporting documentation is not maintained, not to exceed
$6,000 per agency action; and submission of a corrective action plan in
the form of provider education. |
A $300 fine per claim for
which supporting documentation is not maintained, not to exceed $4,500 per
agency action. For a pattern:
a $3000 fine per patient record for which any of the supporting
documentation is not maintained, not to exceed $9,000 per agency action;
submission of a corrective action plan in the form of a comprehensive quality
assurance program; and suspension. |
Termination. |
Termination. |
|
|||||
|
(7)(e) Failure
to comply with the provisions of Medicaid publications that have been adopted
by reference as rules. [409.913(15)(e), F.S.]; |
A
$500 fine per provision, not to exceed $1,500 per agency action. For
a pattern: a $1,000 fine per provision, not to exceed $3,000 per agency
action; and submission of a corrective action plan in the form of an
acknowledgement statement. |
A $1,000 fine per
provision, not to exceed $3,000 per agency action. For a pattern: a $2,000
fine per provision, not to exceed $6,000 per agency action; and
submission of a corrective action plan in the form of provider education. |
A
$2,000 fine per provision, not to exceed $6,000 per agency action; and
submission of a corrective action plan in the form of an acknowledgement
statement. For
a pattern: a $3,000 fine per provision, not to exceed $9,000 per agency
action; and submission of a corrective action plan in the form of a
comprehensive quality assurance program. |
A $3,000 fine per
provision, not to exceed $12,000 per agency action; and submission of
a corrective action plan in the form of provider education. For
a pattern: a $4,000 fine per provision, not to exceed $16,000 per agency
action; and suspension. |
A
$5,000 fine per provision, not to exceed $20,000 per agency action;
and, suspension. For
a pattern: termination. |
|
|||||
|
(7)(f) Furnishing
or ordering goods or services that are inappropriate, unnecessary or
excessive, of inferior quality, or that are harmful. [409.913(15)(f), F.S.]; |
For
harmful goods or services: a
$5000 fine for each instance, and suspension. For all others: a $1,000 fine for each
instance and submission of a corrective action plan in the form of provider
education. |
For harmful goods or
services: a $5,000 fine for each
instance, and termination. For
all others: a $2,000 fine for each instance and submission of a corrective
action plan in the form of a comprehensive quality assurance program. |
For
harmful goods or services: a
$5,000 fine for each instance, and termination. For all others: a $3,000 fine for each
instance and suspension. |
Termination. |
Termination. |
||||||
|
(7)(g) A pattern of failure to provide goods or
services that are medically necessary.
[409.913(15)(g), F.S.]; |
A $5,000 fine and submission of a
corrective action plan in the form of provider education. |
A $5,000 fine for each
instance; and suspension as well as the submission of a corrective action
plan in the form of a comprehensive quality assurance program. |
A $5,000 fine for each instance; and
suspension as well as the submission of a corrective action plan in the form
of a comprehensive quality assurance program. |
Termination. |
Termination. |
||||||
|
(7)(h) Submitting false or a pattern of erroneous
Medicaid claims. [409.913(15)
(h), F.S.]; |
For
false claims: Termination. For
a pattern of erroneous claims: a $2,500 |
For false claims:
Termination. For a pattern of
erroneous claims: A $5,000 |
Termination. |
Termination. |
Termination. |
||||||
|
(7)(i) Submitting certain documents containing information
that is either materially false or materially incorrect. [409.913(15)(i),
F.S.]; |
A
$10,000 fine for each separate violation |
Termination. |
Termination. |
Termination. |
Termination. |
||||||
|
(7)(j) Collecting or billing a recipient
improperly. [409.913(15) (j), F.S.];
|
A $1,000 fine for each
instance. |
A
$2,500 fine for each instance. |
A
$5,000 fine for each instance |
A
$5,000 fine for each instance |
Termination. |
||||||
|
(7)(k) Including unallowable costs after having
been advised. [409.913(15)(k), F.S.]; |
A
$5,000 fine for each unallowable cost. |
A $5,000
fine for each unallowable cost. |
A
$5,000 fine for each unallowable cost.
|
A
$5,000 fine for each unallowable cost.
|
A
$5,000 fine for each unallowable cost.
|
||||||
|
(7)(l) Being charged with fraudulent billing
practices. [409.913(15)(l), F.S.]; |
Suspension
for the duration of the indictment.
If the provider is found guilty, termination. |
Suspension
for the duration of the indictment.
If the provider is found guilty, termination. |
Suspension
for the duration of the indictment.
If the provider is found guilty, termination. |
Suspension
for the duration of the indictment. If the provider is found guilty,
termination. |
Suspension
for the duration of the indictment.
If the provider is found guilty, termination. |
||||||
|
(7)(m) Negligently ordering or prescribing, which
resulted in the patient’s injury or death. [409.913 (15) (m), F.S.]; |
Termination. |
Termination. |
Termination. |
Termination. |
Termination. |
||||||
|
(7)(n) Failure to demonstrate sufficient
quantities of goods or sufficient time to support the corresponding billings or
claims made to the Medicaid program. [409.913(15)(n), F.S.]; |
A
$5,000 fine. |
A
$5,000 fine and submission of a corrective action plan in the form of a
comprehensive quality assurance program. |
A
$5,000 fine and suspension. |
Termination. |
Termination. |
||||||
|
(7)(o) Failure to comply with the notice and
reporting requirements of s. 409.907. [409.913(15)(o), F.S.]; |
A
$1,000 fine. |
A $2,000 fine. |
A
$3,000 fine. |
A
$4,000 fine. |
A
$5,000 fine. |
||||||
|
(7)(p) Committing patient abuse or neglect, or any
act prohibited by s. 409.920. [409.913(15)(p), F.S.]; |
A
$5,000 fine per instance, and suspension. |
Termination. |
Termination. |
Termination. |
Termination. |
||||||
|
(7)(q)
Failure to comply with an agreed-upon repayment schedule. [409.913(15)(q), F.S.]; |
A
$1,000 fine; and, where the provider remains out of compliance for 30 days, suspension;
and, where the provider remains out of compliance for more than 180 days,
termination. |
A $2,000 fine; and, where the provider
remains out of compliance for 30 days, suspension; and, where the provider
remains out of compliance for more than 180 days, termination. |
A $3,000 fine and suspension until in
compliance; where the provider remains out of compliance for more than 180
days, termination. |
A
$4,000 fine and suspension until in compliance; where the provider remains
out of compliance for more than 180 days, termination. |
A
$5,000 fine and suspension until in compliance; where the provider remains
out of compliance for more than 180 days, termination. |
||||||
Specific
Authority 409.919 FS. Law Implemented 409.907, 409.913, 409.9131, 409.920,
812.035 FS. History-New
NAME OF PERSON ORIGINATING PROPOSED RULE: Kelly
Bennett, Assistant Bureau Chief, Medicaid Program Integrity
NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED
RULE: Alan Levine, Secretary, Agency for Health Care Administration
DATE PROPOSED RULE APPROVED BY AGENCY HEAD:
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN
FAW: