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 (...

Notice of Proposed Rule

 

AGENCY FOR HEALTH CARE ADMINISTRATION

Medicaid

409.919 FS.

Tuesday, March 7, 2006, 2:30 p.m.

 

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 July 1, 2005, where a final overpayment is identified and a fine is to be imposed as a result of the violations giving rise to that overpayment, the cumulative amount of the fine shall not exceed thirty-percent of the amount of the overpayment. Where the fine does exceed thirty-percent of the amount the overpayment, the fine shall be adjusted to thirty-percent of the amount of the overpayment.

(c) For the second agency action against a provider after July 1, 2005, where a final overpayment is identified and a fine is to be imposed as a result of the violations giving rise to that overpayment, the cumulative amount of the fine shall not exceed fifty-percent of the amount of the overpayment. Where the fine does exceed fifty-percent of the amount the overpayment, the fine shall be adjusted to fifty-percent of the amount of the overpayment.

(c) For all subsequent agency actions against a provider after July 1, 2005, where a final overpayment is identified and a fine is to be imposed as a result of the violations giving rise to that overpayment, the cumulative amount of the fine shall not exceed the amount of the overpayment. Where the fine does exceed the amount the overpayment, the fine shall be adjusted to the amount of the overpayment.

(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 Florida, or has been revoked, suspended, or terminated, by the licensing agency of any state. [Section 409.913(15)(a), F.S.];

(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 $1,000 fine for each claim in the pattern; and submission of a corrective action plan in the form of a comprehensive quality assurance program.		For false claims: Termination. For a pattern of erroneous claims: A $5,000 $2,000 fine for each claim in the pattern; and suspension; and upon the conclusion of the suspension, submission of a corrective action plan in the form of a comprehensive quality assurance program.		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; and suspension.		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; and suspension.		A $5,000 fine for each instance; and suspension.		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 4-19-05, Amended ________.

January 30, 2006

December 2, 2005