Florida Statutes 400.474 – Administrative penalties
Current as of: 2023 | Check for updates
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(1) The agency may deny, revoke, and suspend a license and impose an administrative fine in the manner provided in chapter 120.
(2) Any of the following actions by a home health agency or its employee is grounds for disciplinary action by the agency:
For details, see Fla. Stat. § 775.082(3)(e)
(a) Violation of this part, part II of chapter 408, or of applicable rules.
Attorney's Note
Under the Florida Statutes, punishments for crimes depend on the classification. In the case of this section:| Class | Prison | Fine |
|---|---|---|
| Felony of the third degree | up to 5 years | up to $5,000 |
Terms Used In Florida Statutes 400.474
- Agency: means the Agency for Health Care Administration. See Florida Statutes 400.462
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Contract: A legal written agreement that becomes binding when signed.
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Fair market value: means the value in arms length transactions, consistent with the price that an asset would bring as the result of bona fide bargaining between well-informed buyers and sellers who are not otherwise in a position to generate business for the other party, or the compensation that would be included in a service agreement as the result of bona fide bargaining between well-informed parties to the agreement who are not otherwise in a position to generate business for the other party, on the date of acquisition of the asset or at the time of the service agreement. See Florida Statutes 400.462
- Fraud: Intentional deception resulting in injury to another.
- Home health agency: means a person that provides one or more home health services. See Florida Statutes 400.462
- Home health services: means health and medical services and medical supplies furnished to an individual in the individual's home or place of residence. See Florida Statutes 400.462
- Immediate family member: means a husband or wife; a birth or adoptive parent, child, or sibling; a stepparent, stepchild, stepbrother, or stepsister; a father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law; a grandparent or grandchild; or a spouse of a grandparent or grandchild. See Florida Statutes 400.462
- Medical director: means a physician who is a volunteer with, or who receives remuneration from, a home health agency. See Florida Statutes 400.462
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Patient: means any person who receives home health services in his or her home or place of residence. See Florida Statutes 400.462
- person: includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. See Florida Statutes 1.01
- Physician: means a person licensed under chapter 458, chapter 459, chapter 460, or chapter 461. See Florida Statutes 400.462
- Remuneration: means any payment or other benefit made directly or indirectly, overtly or covertly, in cash or in kind. See Florida Statutes 400.462
- Staffing services: means services provided to a health care facility, school, or other business entity on a temporary or school-year basis pursuant to a written contract by licensed health care personnel and by certified nursing assistants and home health aides who are employed by, or work under the auspices of, a licensed home health agency or who are registered with a licensed nurse registry. See Florida Statutes 400.462
- writing: includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. See Florida Statutes 1.01
(b) An intentional, reckless, or negligent act that materially affects the health or safety of a patient.
(c) Knowingly providing home health services in an unlicensed assisted living facility or unlicensed adult family-care home, unless the home health agency or employee reports the unlicensed facility or home to the agency within 72 hours after providing the services.
(d) Preparing or maintaining fraudulent patient records, such as, but not limited to, charting ahead, recording vital signs or symptoms that were not personally obtained or observed by the home health agency’s staff at the time indicated, borrowing patients or patient records from other home health agencies to pass a survey or inspection, or falsifying signatures.
(e) Failing to provide at least one service directly to a patient for a period of 60 days.
(3) The agency shall impose a fine of $1,000 against a home health agency that demonstrates a pattern of falsifying:
(a) Documents of training for home health aides or certified nursing assistants; or
(b) Health statements for staff providing direct care to patients.
A pattern may be demonstrated by a showing of at least three fraudulent entries or documents. The fine shall be imposed for each fraudulent document or, if multiple staff members are included on one document, for each fraudulent entry on the document.
(4) The agency shall impose a fine of $5,000 against a home health agency that demonstrates a pattern of billing any payor for services not provided. A pattern may be demonstrated by a showing of at least three billings for services not provided within a 12-month period. The fine must be imposed for each incident that is falsely billed. The agency may also:
(a) Require payback of all funds;
(b) Revoke the license; or
(c) Issue a moratorium in accordance with s. 408.814.
(5) The agency shall impose a fine of $5,000 against a home health agency that demonstrates a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the patient’s legal representative, or the plan of care for that patient, except as provided in s. 400.492(3). A pattern may be demonstrated by a showing of at least three incidences, regardless of the patient or service, where the home health agency did not provide a service specified in a written agreement or plan of care during a 3-month period. The agency shall impose the fine for each occurrence. The agency may also impose additional administrative fines under s. 400.484 for the direct or indirect harm to a patient, or deny, revoke, or suspend the license of the home health agency for a pattern of failing to provide a service specified in the home health agency’s written agreement with a patient or the plan of care for that patient.
(6) The agency may deny, revoke, or suspend the license of a home health agency and shall impose a fine of $5,000 against a home health agency that:
(a) Gives remuneration for staffing services to:
1. Another home health agency with which it has formal or informal patient-referral transactions or arrangements; or
2. A health services pool with which it has formal or informal patient-referral transactions or arrangements,
unless the home health agency has activated its comprehensive emergency management plan in accordance with s. 400.492. This paragraph does not apply to a Medicare-certified home health agency that provides fair market value remuneration for staffing services to a non-Medicare-certified home health agency that is part of a continuing care facility licensed under chapter 651 for providing services to its own residents if each resident receiving home health services pursuant to this arrangement attests in writing that he or she made a decision without influence from staff of the facility to select, from a list of Medicare-certified home health agencies provided by the facility, that Medicare-certified home health agency to provide the services.
(b) Provides services to residents in an assisted living facility for which the home health agency does not receive fair market value remuneration.
(c) Provides staffing to an assisted living facility for which the home health agency does not receive fair market value remuneration.
(d) Fails to provide the agency, upon request, with copies of all contracts with assisted living facilities which were executed within 5 years before the request.
(e) Gives remuneration to a case manager, discharge planner, facility-based staff member, or third-party vendor who is involved in the discharge planning process of a facility licensed under chapter 395, chapter 429, or this chapter from whom the home health agency receives referrals.
(f) Gives cash, or its equivalent, to a Medicare or Medicaid beneficiary.
(g) Has more than one medical director contract in effect at one time or more than one medical director contract and one contract with a physician-specialist whose services are mandated for the home health agency in order to qualify to participate in a federal or state health care program at one time.
(h) Gives remuneration to a physician without a medical director contract being in effect. The contract must:
1. Be in writing and signed by both parties;
2. Provide for remuneration that is at fair market value for an hourly rate, which must be supported by invoices submitted by the medical director describing the work performed, the dates on which that work was performed, and the duration of that work; and
3. Be for a term of at least 1 year.
The hourly rate specified in the contract may not be increased during the term of the contract. The home health agency may not execute a subsequent contract with that physician which has an increased hourly rate and covers any portion of the term that was in the original contract.
(i) Gives remuneration to:
1. A physician, and the home health agency is in violation of paragraph (g) or paragraph (h);
2. A member of the physician’s office staff; or
3. An immediate family member of the physician,
if the home health agency has received a patient referral in the preceding 12 months from that physician or physician’s office staff.
(j) Fails to provide to the agency, upon request, copies of all contracts with a medical director which were executed within 5 years before the request.
(k) Demonstrates a pattern of billing the Medicaid program for services to Medicaid recipients which are medically unnecessary as determined by a final order. A pattern may be demonstrated by a showing of at least two such medically unnecessary services within one Medicaid program integrity audit period.
Nothing in paragraph (e) or paragraph (i) shall be interpreted as applying to or precluding any discount, compensation, waiver of payment, or payment practice permitted by 42 U.S.C. § 1320a-7(b) or regulations adopted thereunder, including 42 C.F.R. 1001.952 or s. 1395nn or regulations adopted thereunder.
(7) A home health agency shall submit to the agency, with each license renewal application, the number of patients who receive home health services from the home health agency on the day that the license renewal application is filed.
(8)(a) In addition to the requirements of s. 408.813, any person, partnership, or corporation that violates s. 408.812 or s. 408.813 and that previously operated a licensed home health agency or concurrently operates both a licensed home health agency and an unlicensed home health agency commits a felony of the third degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If any home health agency is found to be operating without a license and that home health agency has received any government reimbursement for services, the agency shall make a fraud referral to the appropriate government reimbursement program.