Category Archives: AHCA

OPPORTUNITY TO PROVIDE COMMENTS TO AHCA ON MANAGED CARE PROVIDERS

Today, the Florida Agency for Health Care Administration (AHCA) announced that it is soliciting comments from health care providers regarding any issues or concerns with existing Managed Care Plan providers under the Statewide Medicaid Managed Care Program.   This is your opportunity as a health care provider directly impacted by the Medicaid Managed Care Plans to voice any problems, concerns, or suggestions.  This announcement is part of AHCA’s ongoing re-procurement  under the Statewide Medicaid Managed Care program.  AHCA will consider your comments in the process of making awards to Managed Care Organizations and Provider Service Networks in each Region of the State.   This process was mandated under a legislative amendment that requires AHCA to solicit comments.

BACKGROUND ON STATEWIDE MEDICAID MANAGED CARE PROGRAM

The State of Florida has offered Medicaid services since 1970. Medicaid is funded by both the state and federal government to provide health care coverage for eligible children, seniors, disabled adults, and pregnant women. The annual budget for the program is more than $38 billion and makes up the largest part of the total Florida budget. The 2011 Florida Legislature originally adopted the legislation (now Part IV of Chapter 409, Florida Statutes) to create and establish the Florida Medicaid program as a statewide, integrated managed care program for all covered Medicaid services, including long-term care services. This program is referred to as Statewide Medicaid Managed Care (SMMC) and includes three programs: Managed Medical Assistance (MMA), Long-term Care (LTC), and Dental. The 2022 Florida Legislature passed Senate Bill 1950 (amending part IV of Chapter 409, Florida Statutes) to reallocate Medicaid regions, direct the Agency to conduct a single statewide procurement for the SMMC program, and ensure a minimum number of managed care plans per Medicaid region. More than 4.4 million Floridians are enrolled in Florida’s SMMC program.

COMMENTS TO BE CONSIDERED IN SELECTING NEW MEDICAID MANAGED CARE PLANS AND PROVIDER SERVICE NETWORKS

Based on the 2022 legislative amendment, AHCA is not required to consider comments from health care providers that operate in an area covered by on  the existing Plans.  The Invitation to Negotiate provides:

“ a. Pursuant to Section 409.966(3)(a)8., Florida Statutes, the Agency will consider comments in writing by any enrolled or registered Medicaid provider relating to a respondent that has submitted a response to this solicitation in the same region in which the provider is located and rendering services. b. The Agency will publish a list of respondents and instructions for how providers may submit comments to this solicitation within two (2) business days of the public opening at: https://ahca.myflorida.com/procurements. c. The Agency will utilize an online survey tool for the collection of the provider comments. The online survey tool will remain open and active for a period of ten (10) business days. d. Providers must submit comments to the Agency through the published survey tool by the date/time indicated in Section A., Overview, Sub[1]Section 6., Solicitation Timeline and as outlined on the Agency’s website.

Today’s Announcement provides  that comments must be submitted no later than November 9, 2023 by 5 PM.  Comments are submitted through an on-line survey tool.  For additional information, or assistance in submitting comments, please contact us.

AHCA PROPOSED RULE CHANGES FOR NURSE REGISTRIES

AHCA Notice of Rule Changes

On August 15, 2023, the Agency for Health Care Administration (“AHCA”) published notice of a proposed rule amendment regarding Florida Administrative Code (F.A.C.) Rule 59A-18.0081 which applies to regulation of licensed Nurse Registries in Florida. A copy of the AHCA Notice of Proposed Rule Amendment can be accessed here. Licensed Nurse Registries in Florida should review the proposed changes to determine how these changes to the Rule will affect their future operations, and if there are any concerns that should be addressed prior to the Rule becoming final. Nurse Registries affected by the Rule have certain rights, as described below, to participate in a public hearing or in a formal Rule Protest proceeding to seek changes or modifications to the proposed Rule amendments.

Overview of Rule Amendments

The current Rule 59A-18.0081, F.A.C. sets forth general requirements governing Nurse Registries including Rules that set forth requirements for certified nursing assistants (“CNAs”) and home health aides (“HHAs”) who provide health care services to patients in the home or place of residence and specifies the services that a CNA or HHA can perform. The main purpose of the proposed Rule amendments is to incorporate changes based upon changes recently made to Florida Statute 400.488, “Assistance with self-administration of medication and with other tasks.” This statute was updated in 2022 to add that CNAs and HHAs may assist with other tasks other than just self-administration of medication. This Rule amendment clarifies for CNAs and HHAs what can be performed, and it also clarifies some tasks that cannot be performed.

The proposed rule amendment reflects the additional tasks that CNAs and HHAs may now perform as taught and documented by a registered nurse (“RN”). Many of the proposed changes to the rule are reorganizing the language; however, it does specify both additional tasks that are now allowed, as well as specify some tasks that are not allowed. These proposed changes will assist in clarification for CNAs, HHAs, and the RNs that supervise them. The specific rule changes that include the additional tasks are as follows (underlined additions, strike through deletions):

(a) Assisting with the placement and removal change of a colostomy bag, excluding the removal of the flange or manipulation of the stoma’s site reinforcement of dressing;
(b) Assisting with the application and removal of anti- embolism stockings and hosiery prescribed for therapeutic treatment of the legs.
(b) through (d) renumbered (c) through (e) No Change.
(f) (e) Administer Doing simple urine tests for sugar, acetone or albumin;
(g) Assisting with the use of a glucometer to perform blood glucose testing;
(h) (f) Measuring and preparing special diets;
(i) (g) Measuring intake and output of fluids; and,
(j) (h) Measuring vital signs, including temperature, pulse, respiration or blood pressure;
(k) Assisting with oxygen nasal cannulas and continuous positive airway pressure (CPAP) devices, excluding the titration of the prescribed oxygen levels; and
(l) Assisting with the reinforcement of dressing.

The proposed rule amendment regarding the tasks that cannot be performed by a CNA or Home Health Aide are as follows:

(a) Administer any nursing or therapeutic service that requires licensure as a health care professional;
(b) Change sterile dressings.
(c) Irrigate body cavities such as giving an enema;
(d) Perform irrigation of any wounds (such as vascular ulcers, diabetic ulcers, pressure ulcers, surgical wounds) or apply agents used in the debridement of necrotic tissues in wounds of any type;
(e) Perform a gastric irrigation or enteral feeding;
(f) Catheterize a patient;
(g) Administer medications;
(h) Apply heat by any method;
(i) Care for a tracheotomy tube;
(j) Provide any service which has not been included in the plan of care; or,
(k) Providing assistance with a pill organizer, such as removing medication from a pill organizer and placing the medication in the patient’s hand or filling a pill organizer with the patient’s medication(s).

Other proposed changes to the rule worth mentioning are that when it comes to assistance with self-administration of medications, previously it was required that a review of the medications for which assistance is to be provided was to be conducted by a registered nurse or a licensed practical nurse (“LPN”). The proposed rule will change this and require that an assessment of the patient and patient’s medications for which assistance is to be provided must be conducted by an RN to ensure that a patient receiving such assistance is medically stable and has regularly scheduled medications that are intended to be self-administered. This assessment may not be conducted by an LPN.

Right to Participate in Public Hearing or Formal Rule Challenge Proceedings

Prior to the adoption, amendment, or repeal of any rule other than an emergency rule, an agency such as AHCA is required to give notice of its intended action as required by Section 120.54(3)(a), Florida Statutes. The notice must be published in the Florida Administrative Register not less than 28 days prior to the intended action. Any person who will be substantially affected by a rule or a proposed rule may request a Public Hearing on the Rule changes and may seek an administrative determination of the invalidity of the rule on the grounds that the rule is an invalid exercise of delegated legislative authority pursuant to F.S. 120.56. There are strict time restraints for challenging a proposed rule that are delineated in F.S. 120.56(2) as follows:

A petition alleging the invalidity of a proposed rule shall be filed within 21 days after the date of publication of the notice required by s. 120.54(3)(a); within 10 days after the final public hearing is held on the proposed rule as provided by s. 120.54(3)(e)2.; within 20 days after the statement of estimated regulatory costs or revised statement of estimated regulatory costs, if applicable, has been prepared and made available as provided in s. 120.541(1)(d); or within 20 days after the date of publication of the notice required by s. 120.54(3)(d).

According to published Notice, a Rule Workshop on the proposed Nurse Registry rule changes is scheduled for September 14, 2023, 2:00 p.m. to 3:00 p.m. at the Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Conference Room C, Tallahassee, FL 32308. Individuals may also participate by dialing the Open Voice conference line, 1(888)585-9008, then enter the conference room number followed by the pound sign, 998-518-088#. The agenda and related materials can be found on the web at:
https://ahca.myflorida.com/MCHQ/Health_Facility_Regulatio n/Rulemaking.shtml.
Any affected party may participate in the Workshop to offer comments, ask questions, or suggest modifications. Any Petition to Challenge Proposed Rule Amendments would need to be filed with the Division of Administrative Hearings within 10 days after the final public hearing is held.

Legal Standards in a Rule Challenge

In a formal hearing the Party filing a Rule Challenge has the burden to prove by a preponderance of the evidence that they would be substantially affected by the proposed rule. The Agency then has the burden of proving by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised. According to Section 120.52(8), Florida Statutes, a rule is deemed to be an “invalid exercise of delegated legislative authority” if any of the following apply:

(a) The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;
(d) The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;
(e) The rule is arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational; or
(f) The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.

An example of a recent finding where a rule was found to be an invalid exercise of legislative power was in Fla. Dep’t of Bus. & Pro. Regul., Div. of Alcoholic Beverages & Tobacco v. Walmart Inc., No. 1D19-4599, 2021 WL 1996361 (Fla. Dist. Ct. App. May 19, 2021), reh’g denied (Aug. 19, 2021), wherein the Court held:

Plain meaning of “restaurant” as term was used in statute governing eligibility for consumption-on-premises liquor licenses, whether term’s meaning was “public eating place” or “public food service establishment” or “business establishment where meals or refreshments may be purchased,” supported that restaurants customarily sold food prepared offsite and that restaurants were not limited to selling food prepared onsite, and, thus, rule interpreting statute and defining items “customarily sold in a restaurant” to exclude food prepared offsite was invalid for enlarging, modifying, or contravening statute.

Affected Parties Should Review the Proposed Rule Changes

Nurse Registries affected by the proposed rule amendment should review the proposed amendments carefully. If you feel there is a need for clarification, or that a rule is not warranted or is in conflict with statute, you should exercise your legal rights to participate in the Workshop and any future Public Hearing to seek modification of the proposed rule amendments, or to challenge proposed Rule amendments that may be invalid.

If you have questions or concerns about this new rule, you can contact an experienced healthcare attorney at Smith & Associates for a free consultation.

AHCA Has Released the SMMC ITN

AHCA has now released the Invitation to Negotiate (“ITN”) for the new Statewide Medicaid Managed Care contracts. Importantly, AHCA has set the following key deadlines:

  • Deadline for receipt of written questions is May 3, 2023.
  • The anticipated date for Agency responses to written questions is June 27, 2023.
  • Deadline for receipt of responses to the ITN is 12:00 p.m. August 15, 2023.

While review of the ITN is still ongoing, there are some key details to the proposed contracts that AHCA intends to award that stand out. The first is that AHCA intends to award contracts to “nationally accredited plans that offer an enhanced delivery systems and integration of behavioral and physical health services.” This focus on behavioral health services will provide significant benefits to enrollees and will provide a competitive advantage to prospective bidders who already have integrated behavioral health programs.

Additionally, AHCA has introduced what it calls “plus plans.” These plans are designed to allow family members to receive their services from a Medicaid managed care single plan that provides Managed Medical Assistance (“MMA”), Long Term Care (“LTC”), and specialty plans. According to the ITN, “[e]nrollees will no longer need to change plans to access specialty population services, split families up among multiple plans or choose between accessing Specialty plans.”

The ITN requires that providers that wish to provide LTC services must submit proposals that have them acting either as a comprehensive long term care plan, a comprehensive long term care-plus plan, or a selected comprehensive plan. MMA providers will be required to act either as a comprehensive LTC plan, a comprehensive LTC-plus plan, a MMA plan, or a MMA-plus plan. Finally, providers bidding on specialty services will be required to serve as a comprehensive LTC-plus plan or a MMA-plus plan.

Finally, due to legislative changes, AHCA will be able to award these contracts on either a statewide or regional basis. It should also be noted that this same legislative change also reduced the number of Medicaid regions from 11 to 9.

This is the third time that AHCA has bid these contracts. The prior two bids led to significant bid protests over who should be awarded these contracts. For more information on protesting an ITN award, please see our article Bid Protest – Know your Rights, the Clock is Ticking. With tens of billions of dollars at stake, it is likely that this will happen again. Should you decide to submit a bid, you should prepare your response with a protest in mind – making sure that all the ITN requirements are met and arranged in proper form. If you need assistance preparing your ITN response or have questions about the ITN, please feel free to contact us to discuss your options.

SMMC Contracts Re-Bid – Invitations to Negotiate Will be Issued Soon

Florida’s Statewide Medicaid Managed Care (“SMMC”) contracts are soon going to be re-bid. With approximately $70 billion on the line, competition for these new contracts will be fierce. On May 6, 2022, AHCA issued a Request for Information regarding the new SMMC contracts, and 58 entities responded. These responses can be found here.

AHCA has now published its Medicaid Data Book which provides relevant historical data and background information to potential contractors who wish to respond to AHCA’s upcoming Invitation to Negotiate (“ITN”). This Medicaid Data Book can be found here.

In addition to providing valuable information to prospective bidders, the Medicaid Data Book is an important prerequisite to the issuance of the ITN as it must be issued 90 days prior to issuance of the ITN. As the Medicaid Data Book was issued on November 22, 2022, the ITN is expected to be released sometime at the end of February or beginning of March, 2023.

Further, AHCA is holding a public meeting regarding the Medicaid Data Book on January 5, 2023. A copy of the agenda for that meeting can be found here.

Given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found at http://smithlawtlh.com/bid-protests-know-your-rights-the-clock-is-ticking/, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts.

The first issue is specification challenges. Specification challenges are challenges to the terms, conditions, or specifications contained in the solicitation (including any provisions governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract). If a potential bidder wished to make a specification challenge, a notice of protest must be filed within 72 hours after posting of the solicitation. Failure to timely file this notice of protest will result in waiving any challenges that the specifications were biased, unclear, or otherwise deficient.

The second issue arises after an award (or intended award) is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

With billions of dollars at stake on these SMMC contracts, you should be preparing your response to the ITN with a bid protest in mind – both to defend your award if you win and to place yourself in a good position to challenge if you are unsuccessful.
If you need assistance preparing your ITN response or if you are considering a bid protest to either the specifications or award of the new SMMC contracts, the experienced legal counsel at Smith & Associates can help. Contact us for a free consultation to discuss your rights

SMMC Contracts Update: The RFI’s are In and ITNs are Soon to Follow

Florida’s Statewide Medicaid Managed Care (“SMMC”) contracts are soon going to be re-bid. With approximately $70 billion on the line, competition for these new contracts will be fierce. AHCA issued a Request for Information on May 6, 2022 and 58 entities responded. These responses can be found here: https://ahca.myflorida.com/medicaid/statewide_mc/Re-Procure_request_info.shtml

As discussed in our prior article, we should expect the actual Invitation to Negotiate (“ITN”) to be issued soon. Given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found here, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts. The first issue is specification challenges. Specification challenges are challenges to the terms, conditions, or specifications contained in the solicitation (including any provisions governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract). If a potential bidder wished to make a specification challenge, a notice of protest must be filed within 72 hours after posting of the solicitation. Failure to timely file this notice of protest will result in waiving any challenges that the specifications were biased, unclear, or otherwise deficient. The second issue arises after an award (or intended award) is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

With billions of dollars at stake on these SMMC contracts, you should be preparing your response to the ITN with a bid protest in mind – both to defend your award if you win and to place yourself in a good position to challenge if you are unsuccessful.

If you need assistance preparing your ITN response or if you are considering a bid protest to either the specifications or award of the new SMMC contracts, the experienced legal counsel at Smith & Associates can help. Contact us for a free consultation to discuss your rights.

SMMC Contracts are on the Horizon: The Time to Prepare is Now

Florida’s Statewide Medicaid Managed Care (“SMMC”) contracts are soon going to be re-bid. With approximately $70 billion on the line, competition for these new contracts will be fierce. While a timeline for the bidding process has not been announced, if the Agency for Health Care Administration (“AHCA”) follows the same timeline as it did for the prior bidding, we can expect an initial press release requesting non-binding letters of intent in September or October of this year, with the actual Invitation to Negotiate (“ITN”) being issued in April or May of 2022. Given the amount of money at issue on these bids and the expected amount of competition, if you are considering bidding on one or more of these contracts, now is the time to start preparing.

Further, given what is at stake, bid protests over the award (and the specifications) are almost a given. While our article on bid protests covers this issue in more detail and can be found here, there are a few key things you should know about bid protests if you are considering bidding on the SMMC contracts. The first issue is specification challenges. Specification challenges are challenges to the terms, conditions, or specifications contained in the solicitation (including any provisions governing the methods for ranking bids, awarding contracts, reserving rights for further negotiation, or modifying or amending any contract). If a potential bidder wished to make a specification challenge, a notice of protest must be filed within 72 hours after posting of the solicitation. Failure to timely file this notice of protest will result in waiving any challenges that the specifications were biased, unclear, or otherwise deficient. The second issue arises after an award (or intended award) is posted. Any eligible person who wishes to challenge the award (or intended award) must file a notice of protest within 72 hours of the posting. These timelines, like the other timelines discussed in the linked article, are strict deadlines and failure to meet them will likely result in a waiver of your right to protest.

With billions of dollars at stake on these SMMC contracts, you should be preparing your response to the ITN with a bid protest in mind – both to defend your award if you win and to place yourself in a good position to challenge if you are unsuccessful.

If you need assistance preparing your ITN response or if you are considering a bid protest to either the specifications or award of the new SMMC contracts, the experienced legal counsel at Smith & Associates can help. Contact us for a free consultation to discuss your rights.

COVID-19 FACILITY SURVEYS

During this challenging and uncertain time in the fight against COVID-19, the Agency for Health Care Administration (“AHCA”) has been working closely with the Florida Department of Health (“DOH”) and health care providers on COVID-19 prevention and response efforts to ensure that facilities across Florida have the knowledge and training to take every precaution to ensure the health and safety of patients, residents and health care staff. AHCA shares key guidance from the Centers for Disease Control and Prevention (“CDC”) and DOH on the importance of restricting visitors, infection control protocols, and hygiene best practices. All licensees need to be vigilant in the protection against the spread of COVID-19 at their facilities. In facilities such as Assisted Living Facilities (“ALFs”) and Skilled Nursing Facilities (“SNFs”), it is extremely important to follow prevention guidelines because once COVID-19 appears in a facility it is a quick battle to isolate it and prevent others from being infected. Unfortunately, sometimes the battle is not quickly won, and the good guy suffers despite following detailed recommendations released by the CDC and the DOH.

Although AHCA and the DOH provide information on training, prevention, and response efforts, it must be noted that they are the policing agencies that are responsible for making sure that the Florida facilities protect their residents. Alerts released through AHCA require that facilities must report the positive COVID-19 cases in their facilities on a daily basis through the Emergency Status System (“ESS”). The ESS is the approved database for all licensees providing residential or inpatient services to report their emergency status. The number of COVID-19 cases in a facility is considered emergency status and must be reported daily.

AHCA and other state survey agencies are under extreme pressure to survey facilities to ensure compliance with COVID-19 directives. In fact, on January 4, 2021, the Centers for Medicare and Medicaid (“CMS”) issued a revised memorandum detailing new triggers for focused infection control surveys. The original CMS memorandum from June 1, 2020 identified two triggers for an infection control survey: nursing homes that report three or more new COVID-19 cases in the past week or one new resident case in a nursing home that was previously COVID-free as reported to National Healthcare Safety Network (“NHSN”). These surveys must be initiated by the state survey agency within three to five days of identification.

The January 4, 2021 update has outlined five more triggers for a focused infection control survey which went into effect immediately. Now nursing homes must meet one of the original case criterion plus at least one of the following new criteria: multiple weeks with new COVID-19 cases, low staffing, selection as a Special Focus Facility (a facility identified by CMS to have a documented pattern of providing poor care), concerns related to conducting outbreak testing per CMS requirements, or allegations or complaints that pose a risk of harm or immediate jeopardy to the health or safety or that are related to certain areas such as abuse or quality of care (e.g., pressure ulcers, weight loss, depression, decline in functioning). A survey may not be necessary for nursing homes meeting the above criteria if the nursing home received an onsite focused infection control survey in the three weeks prior to meeting the criteria, either as a stand-alone survey or as part of a recertification survey. However, in the event that a nursing home continues to meet the above criteria in the fourth week following the prior focused infection control survey, a new survey should be initiated. It must be noted that the original June 1, 2020 memorandum directed that state survey agencies must conduct a focused infection control survey of a minimum of 20% of the nursing homes in the state during the fiscal year 2021. Additionally, to meet this minimum of 20% of state nursing homes surveyed, only stand-alone focused infection control surveys may be counted.

In February 2021, AHCA issued its most recent emergency rules regarding mandatory entry for testing: 59AER21-3 Mandatory Entry for Testing and Infection Control for Nursing Homes and 59AER21-2 Mandatory Entry for Testing and Infection Control for Assisted Living Facilities. These rules provide updated DOH infection control directives and infection control duties concerning staff and resident testing, including making off-shift staff available at the facility for testing.

AHCA’s Field Operations Offices are responsible for conducting facility surveys. When deficiencies are found, a report called a Statement of Deficiencies (“SOD”), is generated to the facility for corrective action. The SOD issued to the facility will specify which rules or statutes the facility is deficient in following. In a situation where a facility is the subject of a focused COVID survey, the SOD may contain a deficiency for Resident Care – Rights & Facility Procedures pursuant to F.A.C. 59A-36.007(6) and F.S. 429.27 and F.S. 429.28 for failure to adhere to recognized standards from the CDC. Such failure may be in the form of failing to ensure social distancing and/or, failure to ensure residents and staff wore personal protective equipment (“PPE”) to prevent the spread of COVID-19. Additionally, it may include facility’s failure to ensure that the staff were knowledgeable about the prevention of the spread of COVID-19 and failure to screen staff and residents appropriately.

Another potential violation of the above rule and statutes that the SOD may contain is for failure to properly abide by the Division of Emergency Management (“DEM”) Order No. 20-011 (signed October 20, 2020) regarding the prohibition of entry of individuals to the facility except in certain circumstances as follows:

1. Every facility must continue to prohibit the entry of any individual to the facility, except in the following circumstances:
…
K. General visitors, i.e. individuals other than compassionate care visitors, under the criteria detailed below:
…
iii. Before allowing general visitors, the facility shall:
1. Set a policy to prohibit visitation if the resident receiving general visitors is quarantined, positive for COVID-19 and not recovered (as defined by most recent CDC guidance), or symptomatic for COVID-19;
2. Screen general visitors to prevent possible introduction of COVID-19;
3. Establish limits on the total number of visitors allowed in the facility, or with a resident at one time based on the ability of staff to safely screen and monitor visitation;
4. Establish limits on the length of visits, days, hours, and number of visits allowed per week;
5. Schedule visitors by appointment only;
6. Maintain a visitor log for signing in and out;
7. Immediately cease general visitation if a resident—other than in a dedicated wing or unit that accepts COVID-19 cases from the community—tests positive for COVID-19, or is exhibiting symptoms indicating that he or she is presumptively positive for COVID-19, or a staff person who was in the facility in the prior ten (10) days tests positive for COVID-19;
8. Monitor visitor adherence to appropriate use of masks, PPE, and social distancing;
9. Notify and inform residents and their representatives of any changes in the facility’s visitation policy;
10. Clean and disinfect visiting areas between visitors and maintain handwashing or sanitation stations; and
11. Designate staff to support infection-prevention and control education of visitors on use of PPE, use of masks, hand sanitation, and social distancing.

2. Individuals seeking entry to the facility, under the above section 1, will not be allowed to enter if they meet any of the screening criteria listed below:
A. Any person infected with COVID-19 who does not meet the most recent criteria from the CDC to end isolation.
B. Any person showing, presenting signs or symptoms of, or disclosing the presence of a respiratory infection, including cough, fever, shortness of breath, sore throat, chills, headache, muscle pain, repeated shaking with chills, new loss of taste or smell, or any other COVID-19 symptoms identified by the CDC.
C. Any person who has been in close contact with any person(s) known to be infected with COVID-19, who does not meet the most recent criteria from the CDC to end quarantine.

Clearly, this Order is very detailed on when and how a facility can admit visitors into the facility and it can easily be found that a facility failed to follow it precisely.

Another possible deficiency that a facility may be cited for is failure to follow the Comprehensive Emergency Plan that is required by F.S. 408.821. This statute requires that any licensee providing residential or inpatient services must utilize an online database approved by AHCA to report information to AHCA regarding the provider’s emergency status, planning, or operations. As stated above, all facilities are required to report their COVID-19 positive cases through the ESS on a daily basis. If a facility fails to report a positive case on any day, it can be cited for failure to follow the Comprehensive Emergency Plan violating the statute.

AHCA imposes administrative fines for violations according to a classification system in statute, based on the nature of the violation and the gravity of its probable effect on facility residents. ALFs’ (governed by Chapter 429, Part I, Florida Statutes, in addition to Chapter 408, Florida Statutes) deficiencies are classified as a Class I, Class II, Class III, or Class IV violation. The core licensing statutes for the facility type determine the Class and the fine that AHCA is authorized to charge the provider. SNFs are governed by Chapter 400, Part II, Florida Statutes, as well as Chapter 408, Part II, Florida Statutes. The “classification” system and applicable penalties for SNFs are found in section 400.23(8), Florida Statutes, and while similar to those of ALFs have striking differences. Specifically, the SNF statute provides for different levels of fines depending on whether the deficiency was isolated, patterned, or widespread. Additionally, for Class I, II, and III deficiencies, section 400.23(8), Florida Statutes, provides that “The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection.” (emphasis added).

As part of a survey that results in deficiencies due to COVID-19, AHCA may request a facility to enter a Voluntary Limitation on Admissions in order to help control the spread of COVID-19 in the facility. Many facilities will agree to the voluntary limitation in the best interests of their residents. Unfortunately, the facility cannot begin readmitting former residents or admitting new residents until AHCA issues a letter lifting the voluntary limitation. When the facility finally gets the green light on admissions it is possible that they will have lost numerous readmissions and initial admissions and therefore face a steep financial challenge.

Additionally, even though a facility agrees to a voluntary limitation and then quickly contains the COVID-19 outbreak, they are still at risk for being the subject of an Administrative Complaint. The Administrative Complaint will seek administrative fines, a survey fee, and will sometimes seek to take action against the facility license (e.g., license suspension or revocation). Once served with an Administrative Complaint, the facility has the option to file a Petition for Formal Administrative Hearing to challenge the validity of AHCA’s action or proposed action on the license. Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings. Such hearings are an opportunity to prove that the true facts do not support the sought fines, and suspension or revocation of the facility license.

If your facility has received an Administrative Complaint resulting from COVID-19 issues, we can help. Contact an attorney at Smith & Associates today to discuss your rights and options. For additional information on challenging a statement of deficiency or on classification of violations, please see our article Defending Alleged Survey Deficiencies At Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs).

AHCA Recommends New Medicaid Payment System to Legislature

UPDATE: The Agency for Health Care Administration (AHCA) held their final public meeting on November 20, 2015, to wrap-up their discussion and submit recommendations to the Legislature for the development of an Outpatient Prospective Payment System (OPPS) to replace the current “cost-based per visit” rate methodology for Florida’s Medicaid program. AHCA’s recommendation will be to adopt a modified Enhanced Ambulatory Patient Grouping system (EAPG), which involves bundling procedures and medical visits that share similar characteristics and pays one base rate to the provider to cover all of the bundled services. The new system is expected to be implemented on July 1, 2016.

Tom Wallace, Bureau Chief of AHCA’s Medicaid Program Finance, along with members of Navigant Healthcare, the private consulting company contracted to develop the new payment system were looking at two primary model options for the OPPS: 1) the EAPG, which requires proprietary software (most likely from Navigant) that will need to be purchased by providers; and 2) the Ambulatory Payment Classification (APC) model, which is linked to Medicare’s OPPS system. By the last meeting in October, it was clear that AHCA and Navigant preferred the EAPG system to the APC model. The recommendation presented at the final meeting confirmed the agency’s preference for the EAPG model.

Significantly, the consulting company provided a simulation of how the EAPG system would pay claims to hospitals based on data collected by AHCA in accordance with the current payment system. Navigant provided charts of the top 20 hospitals and ambulatory surgical centers (ASCs) that would see the biggest payment increases and decreases. (See pages 23-26 of attached workshop presentation.) According to the simulation compiled by Navigant using previous years data, the greatest increases in payments will be seen by Ocala Regional Medical Center, Bethesda Hospital East, St. Vincent’s Medical Center and Bayfront Health – St. Petersburg. The greatest decreases will be seen by Jackson Memorial Hospital, Florida Hospital, Homestead Hospital and Sacred Heart Hospital. (Full simulation results are attached here and here as Exel spreadsheets.) Approximately 18 hospitals were excluded from the simulation (including University Behavioral Hospital, Windmoor Healthcare, Emerald Coast Behavioral, UF Health Shands, UF Health Jacksonville, and others) because approximately 33-percent or more of their prior claims data were missing procedure codes. (See page 18 of attached workshop presentation for complete list.) It was suggested at the meeting that the committee reach out to the hospitals to get their procedure codes so that they can be included in the simulation.

Additional recommendations that will be provided to the Legislature include the following:

  1. No outlier payments from Medicare OPPS (payments above or beyond scope of EAPG system);
  2. No service line adjusters and only one provider-specific adjuster for hospitals with high Medicaid outpatient utilization (Nemours Children’s Hospital, Nicklaus Children’s Hospital and All Children’s Hospital);
  3. No “charge cap” with the EAPG payment methodology to allow payment of the lessor of submitted charges or Medicaid-allowed amount;
  4. Allow a 5-percent adjustment to the EAPG base rate to account for anticipated documentation and coding improvement (consistent with the value used in the first year of APR-DRG implementation); and
  5. Applicable claims paid between July 1, 2016, and the date of implementation will be adjusted to apply EAPG pricing (retroactive to July 1, 2016).

AHCA will submit its recommendations to the Florida Legislature by November 30, 2015. Legislation regarding a new payment system is expected to be passed during the 2016 Session, with the new program to be effective on or about July 1, 2016.

For more information about AHCA’s development of the OPPS, please contact an attorney at Smith & Associates.

A Year in Review: AHCA’s Managed Medical Assistance Program

AHCA presented a Post-Award Forum for Florida’s 115 Managed Medical Assistance (MMA) Waiver during the Medical Care Advisory Committee meeting on October 13, 2015. The forum provided a platform for AHCA to showcase data of the MMA program’s success and hear comments from the public regarding specific areas where the program fell short.

Medicaid is a federal/state entitlement program which is jointly financed by state and federal funds. Federal law requires the coverage of certain eligibility groups and services (mandatory), and states have the option of covering additional eligibility groups and services (optional). Florida implemented the MMA program as a way to incentivize higher quality care without causing inflation. In February 2015, AHCA signed contracts with MMA insurance providers to deliver a system of care to residents in each of the 11 AHCA districts in Florida.

In analyzing Florida’s average annual cost for Medicaid care, AHCA representative Beth Kidder presented a graph showing that the cost per person dropped from $6,564 per person in year 2010-11 to an anticipated $5,878 in 2015-16. AHCA also showcased an increased rate of participation by physicians and dental care providers. From November 2013 to June 2015, AHCA noted an increase of 7.43-percent increase in MDs and DOs providing services to Medicaid recipients. During the same time period, AHCA stated that total participating dentists increased by 23.09-percent.

Most of the public comments regarding the MMA program focused on the failure to ensure payment by providers to Emergency Transport Services (EMS) in Florida. Several groups representing EMS providers throughout Florida complained about improperly denied reimbursement for medical transports and the categorical denial of transports of more than 30 miles. The EMS providers pointed out that Medicare reimbursed such transports, and so should the MMA program providers. One EMS provider suggested a rule or statutory revision to require hospitals and nursing homes to obtain pre-authorization for a transfer request so that EMS is ensured reimbursement.

The Agency will be releasing a series of quarterly reports on the Statewide Medicaid Managed Care program. Reports for the first two quarters are available on the Agency’s website. The Agency also began publishing a consumer-focused health plan report card which includes annual ratings on how Florida’s health plans are faring with regards to providing preventative health care services to women and children (i.e., well-child visits, prenatal care for pregnant women). Plan effectiveness is measured through the Healthcare Effectiveness Data and Information Set (HEDIS), which is a standardized set of performance measures by the National Committee for Quality Assurance and used by more than 90-percent of the health plans in the U.S.

For more information about the MMA program in Florida or any other issue, please contact an attorney at Smith & Associates.