Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 36 No. 18, May 7, 2010 issue of the Florida Administrative Weekly.

59G-9.070 Administrative Sanctions on Providers, Entities, and Persons.

(1) No change.

(2) APPLYING AND REPORTING SANCTIONS: Notice of the application of sanctions will be by way of written correspondence and the final notice shall be the point of entry for administrative proceedings pursuant to Chapter 120, F.S. Satisfaction of an overpayment following a preliminary audit report will not avoid the application of sanctions at a final audit report unless the Agency offers amnesty pursuant to Section 409.9132(25)(e), F.S. The Agency shall report all sanctions imposed upon any provider, entity, or person, or any principal, officer, director, agent, managing employee, or affiliated person of a provider who is regulated by another state entity, regardless of whether enrolled in the Medicaid program, to that other state entity. Sanctions are imposed upon the Final Order being filed with the Agency Clerk.

(3) DEFINITIONS:

(a) through (g) No change.

(h) “Offense” means the occurrence of one or more violations as set forth in a final audit report. For purposes of the progressive nature of sanctions under this rule, offenses are characterized as “first”, “second”, “third”, or “subsequent” offenses; subsequent offenses are any occurrences after a third offense.

(i) through (q)1. No change.

2. For purposes of determining ~~deterring~~ first, second, third or subsequent offenses under this rule, prior Agency actions during the preceding five years will be counted where the provider, entity, or person was deemed to have committed the same violation.

3. No change.

4. For purposes of determining a violation regarding including an unallowed cost in a cost report (paragraph (7)(k) and Section 409.913(15)(k), F.S.), ~~a violation has not occurred~~ if the unallowed cost or costs are the subject of an administrative hearing pursuant to Chapter 120, F.S., inclusion of the unallowed cost or costs in a cost report is not a violation until the conclusion of the administrative proceedings.

5. through 6. No change.

(4) LIMITS ON SANCTIONS:

(a) through (c) No change.

(d) Where the audit report does not include an overpayment determination, it only applies a sanction, and where a fine is assessed for violations that are a “first offense” as set forth in this rule, the cumulative amount of the fine shall not exceed $20,000; where the violations are a “second offense” as set forth in this rule, the cumulative amount of the fine shall not exceed $50,000; where the violations are a “third or subsequent offense” as set forth in this rule, there are no limits on the cumulative amount of the fine to be applied.

(e) through (5) No change.

(6) ADDITIONAL REQUIREMENTS REGARDING SUSPENSION AND TERMINATION:

(a) For purposes of this rule a “suspension” precludes participation for one year, or such shorter period of time as is set forth in this rule. The suspension period begins from the date of the Final Order that imposes the Agency action ~~unless the suspension is an “immediate suspension”. An immediate suspension period begins from the date of notice of the suspension~~.

1. through (b)1. No change.

(7) SANCTIONS: In addition to the recoupment of the overpayment, if any, the Agency will impose sanctions as outlined in this subsection. 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 as follows:

(a) A required license is not renewed, or is revoked, suspended, or terminated: For a first offense of suspension, ~~an immediate~~ suspension for the duration of the licensure suspension; for all other violations, including suspension after a first offense, termination. [Section 409.913(15)(a), F.S.];

(b) through (j) No change.

(k) For, including costs in a cost report that are not authorized under the Medicaid state plan or that were disallowed during the audit process, after having been advised that the costs were not allowable: For a first offense, $5,000 fine; however, if after 30 days the violation continues, suspension and $1,000 fine per day that the violation continues. For a second offense $5,000 fine; however, if after 30 days the violation continues, suspension and $5,000 fine per day that the violation continues. For a third and subsequent offense, termination. [Section 409.913(15)(k), F.S.];

(l) For being charged by information or indictment with fraudulent billing practices ~~specified actions~~: Immediate suspension for the duration of the indictment and, if convicted, termination. [Section 409.913(15)(l), F.S.];

(m) through (8)(a) No change.

(9) Section and chart deleted.