Posted by: Robert Markette
May 08, 2008
Topic: Home Care and Hospice Regulations

Well, the Florida legislature just passed a major revision to the Florida home health licensure statutes.  As many of you know, home health fraud has been rampant in Florida.  The abuses in Miami have been widely reported and are probably well known to anyone reading this blog.  A number of law enforcement agencies have been investigating these abuses.

It seems that the Florida legislature has decided additional action is necessary.  They have enacted a number of anti-fraud provisions into the Florida home health licensure statute.  The statute gives the Florida Agency for Health Care Administration the authority to impose fines for certain violations.  A number of new violations have been added that appear to mirror federal anti-kickback and/or stark laws. 

I recall that a few years ago the Florida Supreme Court struck down Florida’s fraud and abuse statutes as being preempted by Federal law.  Having the fraud and abuse enforcement be a matter of administrative proceedings may avoid that issue, but it seems to create a whole other host of problems.  For example, it would seem that the burden of proof is less than the beyond a reasonable doubt standard that would be necessary for an anti-kickback case.  For a stark type violation, you would be able to appeal to an ALJ, but you would not have the right to a trial by jury, because this is an “administrative” matter.

One of the new penalty provisions calls for fines if the agency identifies a “pattern” of falsifying training documents.  Although a pattern is defined as three entries, no time frame is provided.  Is this a three strikes and your out type rule, meaning three such entries over the life of your agency or is it three mistakes in a single survey (which would mean two mistakes per survey are “freebies”).  I say mistakes, because if these “fraudulent entries” are identified by surveyors, a mistaken entry may be treated as a fraudulent entry.  Other offenses involving patterns of conduct include a time frame and they range from three per quarter to three a year.

Another provision allows for a $5,000 fine for failure to provide a service as outlined in the care plan or service agreement. If you have ever been cited for failure to follow a care plan, this should at least give you pause.

None of the remuneration provisions provide a minimum value exception which the federal fraud and abuse laws do.  Will it be a defense in Florida that you have complied with the minimal value exceptions in Stark and the CMP statute?

I may seem a bit alarmist in my initial reaction to this change, but making fraud and abuse issues licensure matters handled by surveyors and ALJs severely erodes the procedural protections available to an agency in the midst of a fraud investigation.  In this day and age, with the emphasis on fraud enforcement, removing protections from providers is likely to cause more harm than good.  There may be other unforeseen consequences as well. 

Perhaps Florida felt they needed to do this because of the ruling a few years ago from the Florida supreme court, but wouldn’t it have made more sense, been simpler, and more cost effective to simply give the agency the authority to penalize the provider upon conviction of a violation of the applicable federal fraud and abuse laws?  Or perhaps, given the federal emphasis on state enforcement, a new state level fraud and abuse code could have been enacted and survived a court challenge, because there is lots of evidence from the feds they want state level enforcement.  Heck, the DRA called for state level false claims act statutes, even though there is a federal one as well.

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