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FAQs Section 14s

These Frequently Asked Questions and Answers are provided for general informational purposes only. They do not constitute, and should not be substituted for, professional legal advice. These Frequently Asked Questions and Answers are not an interpretation of law nor are they statements of AHCA policy. Each situation is different and each situation deserves individual attention. Due to the complex nature of the state and federal laws that govern health care facilities, home health agencies and other readers should consult with a health care attorney for their particular issue. Readers should recognize that there are federal laws enforced by the federal government and other state laws enforced by the Florida Attorney General’s Office that apply to home health agencies. Readers should also recognize that statutes, rules and their interpretations may change over time.

14.1 Marketing in General – F.S. 400.474

14.1.1 Does F.S. 400.474 prohibit a home health agency from advertising?

Answer: No. There are no state laws that prohibit home health agencies from advertising in newspapers, other print media, television, radio or the internet.

14.1.2 Does F.S. 400.474 prohibit a home health agency from having a booth at a health fair, shopping mall or senior center and giving away inexpensive marketing items such as pens, pads, and other items with the home health agency’s name on it?

Answer: F.S. 400.474 does not prohibit a home health agency from having a marketing booth. F.S. 400.474(6)(g), however, prohibits a home health agency from giving cash, or its equivalent, to a Medicare or Medicaid beneficiary. If your home health agency is Medicare or Medicaid certified, please refer to the U.S. Department of Health and Human Services Office of Inspector General’s Special Advisory Bulletin on the Social Security Act Sec. 1128A (a)(5) (Offering Gifts and Other Inducements to Beneficiaries) dated 8/30/2002 at:  https://oig.hhs.gov/fraud/docs/alertsandbulletins/SABGiftsandInducements.pdf

14.1.3 Does F.S. 400.474 prohibit a home health agency from sponsoring a Walk/Run on behalf of a health organization such as the Alzheimer’s Association?

14.1.4 Does F.S. 400.474 prohibit a home health agency from being a sponsor at the National Association for Continuing Education conference that has about 100 physicians in attendance? Does it make a difference whether the home health agency is identified on an information board and its services are posted?

Answer: Such sponsorships are not expressly prohibited by F.S. 400.474. A sponsorship, however, may not serve as a conduit for a home health agency to illegally provide remuneration to physicians or others in violation of F.S. 400.474. As set forth below, subject to certain exceptions and safe harbors under the Federal Anti-Kickback Statute and federal Stark Law and their respective implementing regulations, a home health agency may not provide remuneration to any physician who is not the home health agency’s single medical director. The nature of the charitable event or educational program, the amount of money spent on the event or program, the amenities provided, and other material factors, may be reviewed on a case-by-case basis in order to determine whether prohibited remuneration was provided.

14.2 Copies of Contracts – F.S. 400.474(6)(d) and F.S. 400.474(6)(k)

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: . . .

(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.

* * *

(k) 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.

14.2.1 In two places of the 2008 amendment [400.474(6)(d) and (k)], it refers to providing copies of contracts to the Agency which were executed within 5 years of the request. Since the amendment took effect on July 1, 2008, does this mean 5 years back from request for example? This would be prior to the effective date of the bill. Or, does the 5 years count forward from July 1, 2008?

Answer: The requirements and penalties set forth under F.S. 400.474(6)(d) and (k) apply only to contracts that were executed between the home health agency and an assisted living facility or medical director after July 1, 2008. The Agency, however, may request copies of such contracts executed prior to July 1, 2008, pursuant to F.S. 408.811.

14.3 Medical Directors and Physicians - Questions about F.S. 400.474(6)(h).

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:

(h) 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.

14.3.1 Is a home health agency required to have a medical director?

Answer: No. Home health agency state licensure law does not require a medical director.

14.3.2 Is a home health agency required to have a physician?

Answer: No. Only Medicare and Medicaid home health agencies are required to have a physician on the group of professional personnel that advises the home health agency. The group is to meet a minimum of once per year. (42 CFR 484.16).

14.3.3 May a home health agency have more than one medical director?

Answer: No. Under F.S. 400.474(6)(h), a home health agency may not have “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.”

14.3.4 May a home health agency accept referrals from its one medical director?

Answer: Yes, assuming that the patient referral is not in violation of some other law.

14.3.5 May a home health agency accept referrals from physicians other than its medical director?

Answer: Yes, assuming that the patient referral is not in violation of some other law.

14.3.6 Does a patient have the freedom to choose which home health agency he or she may receive health care services?

Answer: Yes.

14.4 Remuneration in General.

14.4.1 Is it illegal for a home health agency to give remuneration to entities, physicians and other individuals under certain circumstances?

Answer: Yes. F.S. 400.474(6) sets forth several circumstances in which it is illegal for a home health agency to provide remuneration, as defined by F.S. 400.462(27), to certain entities and individuals as set forth more particularly in F.S. 400.474(6)(a), (e), (i) and (j). Other federal and state laws may also prohibit a home health agency from providing remuneration to certain entities and individuals. There are federal laws enforced by the federal government, including the Federal Anti-Kickback Statute and the federal Stark Law, and other state laws enforced by the Florida Attorney General’s Office, including the Florida Patient Self-Referral Act of 1992 (F.S. 456.053), Florida Anti-Kickback Statute (F.S. 456.054), and Florida Fee-Splitting Statute (F.S. 458.331), Florida Patient Brokering Act (F.S. 817.505), that may apply. Depending upon the type of facility, portions of Chapter 400 may apply.

14.4.2 What is the definition of “remuneration” under Florida law?

Answer: As defined in F.S. 400.462(27), "remuneration" means “any payment or other benefit made directly or indirectly, overtly or covertly, in cash or in kind.”

However, if the term is used in any provision of law relating to health care providers, the term does not apply to an item that has an individual value of up to $15, including, but not limited to, a plaque, a certificate, a trophy, or a novelty item that is intended solely for presentation or is customarily given away solely for promotional, recognition, or advertising purposes.

14.4.3 What is “fair market value” under Florida law?

Answer: Under F.S. 400.462(11), “fair market value” is “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.”

14.4.4 What are the penalties or actions that the Agency may seek against a home health agency that gives remuneration in violation of F.S. 400.474(6)?

Answer: Pursuant to F.S. 400.474(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 provides remuneration in violation of this statute. In addition, pursuant to F.S. 400.471(10)(h), the Agency “may not issue a renewal license for a home health agency in any county having at least one licensed home health agency and that has more than one home health agency per 5,000 persons, as indicated by the most recent population estimates published by the Legislature's Office of Economic and Demographic Research, if the applicant or any controlling interest has been administratively sanctioned by the agency during the 2 years prior to the submission of the licensure renewal application” if the home health agency has violated F.S. 400.474(6)(a).

14.4.5 Are there statutory exceptions under Florida law that would permit a home health agency to give remuneration under circumstances?

Answer: Yes. In 2009, the Florida Legislature enacted exceptions to F.S. 400.474(6)(e) and (j). The 2009 amendment states: “Nothing in paragraph (e) or paragraph (j) shall be interpreted as applying to or precluding any discount, compensation, waiver of payment, or payment practice permitted by 42 U.S.C. s. 1320a-7(b) or regulations adopted thereunder, including 42 C.F.R. s. 1001.952 or s. 1395nn or regulations adopted thereunder.” Paragraph (6)(e) includes case managers, discharge planners, facility-based staff members, or third-party vendors involved in the discharge planning process of a facility licensed under chapter 395, chapter 429, or chapter 400, from whom the home health agency receives referrals. Paragraph (6)(j) includes physicians, members of a physician's office staff, and immediate family members of a physician.

14.5 Remuneration to Certain Case Managers, Discharge Planners, Facility Based Staff Members and Third Party Vendors - Questions about F.S. 400.474(6)(e).

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:

* * *

(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.

* * *

Nothing in paragraph (e) or paragraph (j) shall be interpreted as applying to or precluding any discount, compensation, waiver of payment, or payment practice permitted by 42 U.S.C. s.1320a-7(b) or regulations adopted thereunder, including 42 C.F.R. s.1001.952, or s. 1395nn or regulations adopted thereunder.

14.5.1 What are the facilities licensed under Chapter 395, Chapter 429, and Chapter 400, of the Florida Statutes?

Answer: Chapter 395 facilities are hospitals, ambulatory surgery centers, and mobile surgical facilities. Chapter 429 facilities are assisted living facilities, adult family care homes and adult day care centers. Chapter 400 facilities include skilled nursing facilities (more commonly known as nursing homes), home health agencies, nurse registries, hospices, transitional living facilities, prescribed pediatric extended care centers, home medical equipment providers, intermediate care facilities for the developmentally disabled, health care services pools, and health care clinics.

14.5.2 May a home health agency give remuneration to 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 chapter 400, from whom the home health agency receives referrals?

Answer: The answer to this question depends upon the remuneration given by the home health agency to the individual. On its face, F.S. 400.474(6)(e) prohibits a home health agency from giving any type of remuneration to the individuals enumerated in the statute. In 2009, however, the Florida Legislature created an exception for this subsection and recognized the exceptions of the Federal Anti-Kickback Statute and the federal Stark Law. Thus, arrangements involving remuneration that are permitted under the federal laws referenced in the 2009 amendment will not be construed by the Agency as a violation of F.S. 400.474(6)(e).

As the federal exceptions and their interpretations change over time, so does their application by the Agency. The giving of remuneration that is not protected by federal law is subject to Agency enforcement and sanction under state law. The interpretation of this area of federal law and the numerous variations of remuneration are generally beyond the scope of a Frequently Asked Question. There is an abundance of reference materials concerning this area of federal law. Home health agencies should consult with their own health care attorney and review the opinions of the federal Inspector General regarding these federal exceptions and safe harbors.

14.5.3 Is there a federal exception or safe harbor that would allow a home health agency to give nominal forms of remuneration to 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 chapter 400, from whom the home health agency receives referrals?

Answer: It appears that the Federal Anti-Kickback Statute and its implementing regulations set forth no exception or safe harbor that covers the offering of nominal items, such as a pen or a pad with the name of the home health agency, cookies or cakes given during the holiday season, or an occasional modest meal during a face-to-face presentation. In addition, the federal Stark Law applies to financial relationships that involve only physicians. To date, however, the federal government has apparently not sought sanctions for the giving of nominal forms of remuneration like those set forth above because such nominal items were not likely to induce a patient referral. Further, for enforcement purposes, the federal government has interpreted “nominal” to be no more than $10 per item, and of $50 in the aggregate on an annual basis. In order to remain consistent with the federal government’s position, the Agency will construe F.S. 400.474(6)(e) in a manner to permit remuneration of $10 per item, and of $50 in the aggregate on an annual basis, for any one individual. It would be prudent for a home health agency to maintain an accurate and updated expense log to monitor the amount of funds spent annually on items that constitute remuneration. Similarly, in order to maintain consistency with the federal government’s enforcement of these federal laws, when a home health agency gives remuneration (regardless of the total value) to an individual set forth in F.S. 400.474(6)(e) with the intent to induce a patient referral to that home health agency, the giving could be construed as a violation of F.S. 400.474(6)(e).

14.6 Remuneration to Non-Medical Director Physicians - Questions about F.S. 400.474(6)(i).

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: . . .

(i) 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.

14.6.1 May a home health agency give remuneration to a physician who is not a medical director of the home health agency?

Answer: The answer to this question depends upon the remuneration given by the home health agency to the physician. On its face, F.S. 400.474(6)(i) and (j) prohibit a home health agency from giving any type of remuneration to a physician who is not the home health agency’s single medical director. In 2009, however, the Florida Legislature created an exception for F.S. 400.474(6)(j) and recognized the exceptions of the Federal Anti-Kickback Statute and the federal Stark Law. Paragraph (6)(j) includes physicians. As such, arrangements involving remuneration given to a physician that are permitted under the federal laws referenced in the 2009 amendment will not be construed by the Agency as being a violation of F.S. 400.474(6)(i). Under federal law, an annual aggregate of $355 (as of 2009) is permitted. It would be prudent for a home health agency to maintain an accurate and updated expense log to monitor the amount of funds spent annually on items that constitute remuneration. The Agency notes, however, than an express condition under the Stark Law’s non-monetary compensation exception set forth under 42 C.F.R. 411.357(k) is that the compensation arrangement must not violate the Federal Anti-Kickback Statute or any federal or Florida law governing billing or claims submission. Thus, any remuneration (regardless of the total value) given by the home health agency to a non-medical director physician with the intent to induce the physician to make patient referrals to that home health agency could be construed as being a violation of F.S. 400.474(6)(i) unless there exists an express exception or safe harbor to the Federal Anti-Kickback Statute or implementing regulations.

As the federal exceptions and their interpretations change over time, so does their application by the Agency. The giving of remuneration that is not protected by federal law is subject to Agency enforcement and sanction under state law. The interpretation of this area of federal law and the numerous variations of remuneration are oftentimes beyond the scope of a Frequently Asked Question. There is an abundance of reference materials concerning this area of federal law. Home health agencies should consult with their own health care attorney and review the opinions of the federal Inspector General regarding these federal exceptions and safe harbors.

14.7 Remuneration to Physicians, Physician’s Office Staff and Immediate Family Members - Questions about F.S. 400.474(6)(j).

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: . . .

(j) Gives remuneration to:

1. A physician, and the home health agency is in violation of paragraph (h) or paragraph (i);

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.

* * *

Nothing in paragraph (e) or paragraph (j) shall be interpreted as applying to or precluding any discount, compensation, waiver of payment, or payment practice permitted by 42 U.S.C. s.1320a-7(b) or regulations adopted thereunder, including 42 C.F.R. s.1001.952, or s. 1395nn or regulations adopted thereunder.

14.7.1 May a home health agency give remuneration to a physician’s office staff member who has referred a patient to the home health agency within the past twelve months?

Answer: Please refer to the analysis set forth in FAQ 14.5.2 and FAQ 14.5.3.

14.7.2 May a home health agency hire an immediate family member of a physician who refers patients to the home health agency?

Answer: The answer to this question depends upon the remuneration given by the home health agency to the individual. On its face, F.S. 400.474(6)(j) prohibits a home health agency from giving any type of remuneration to the individuals enumerated in the statute. In 2009, however, the Florida Legislature created an exception for this subsection and recognized the exceptions of the Federal Anti-Kickback Statute and the federal Stark Law. Thus, arrangements involving remuneration that are permitted under the federal laws referenced in the 2009 amendment will not be construed by the Agency as being a violation of F.S. 400.474(6)(j).

The federal exceptions, under certain circumstances, permit a health care provider to employ an immediate family member of a physician that refers patients to the health care provider. The circumstances look to the nature of the employment and the employee’s compensation in order to determine whether there is a bona fide employment relationship. Thus, a home health agency may be permitted to hire a physician’s immediate family member as long as the employment is permitted under federal law. The monetary compensation of the employee should be fair and commensurate with type of work being performed. If a home health agency has a concern about a particular employment, it should review the circumstances of each potential employment with their counsel to determine whether a federal safe harbor applies.

As the federal exceptions and their interpretations change over time, so does their application by the Agency. The giving of remuneration that is not protected by federal law is subject to Agency enforcement and sanction under state law. The interpretation of this area of federal law and the numerous variations of remuneration are oftentimes beyond the scope of a Frequently Asked Question. There is an abundance of reference materials concerning the Federal Anti-Kickback Statute. Home health agencies should consult with their own health care attorney and review the opinions of the federal Inspector General regarding these federal exceptions.

14.7.3 May a home health agency lease space from a referring physician?

Answer: Please refer to the analysis set forth in FAQ 14.7.2. There are federal exceptions that may apply to property leases. Whether a property lease falls under an exception will depend upon the particular circumstances and terms of the lease. A primary consideration is whether the price terms are set at a “fair market value.” Property leases substantially below fair market value may be construed by the Agency as a violation of F.S. 400.474(6)(j) and subject a home health agency to sanctions. Other considerations include the duration of the lease and the actual use of the space. Each property lease and the circumstances of each negotiation are different. If a home health agency has a concern about the legality of a property lease, it would be prudent for it to review the particular circumstances of each property lease with its health care attorney to determine whether a federal exception or safe harbor applies.

14.8. Assisted Living Facilities (ALFs)

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:

* * *

(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.

* * *

400.518(4), F.S. The agency shall impose an administrative fine of $15,000 if a home health agency provides nurses, certified nursing assistants, home health aides, or other staff without charge to a facility licensed under chapter 429 in return for patient referrals from the facility.

14.8.1 May a home health agency provide monthly blood pressure clinics in an assisted living facility if it charges a nominal fee?

Answer: No. The fee charged by the home health agency must be at “fair market value.” Please refer to F.S. 400.474(6)(b) and F.S. 400.462(11).

14.8.2 May a home health agency provide monthly educational programs for residents in an assisted living facility?

Answer: Yes, provided that the educational program does not include the providing of services to the assisted living facility residents. Once services are provided, the home health agency must charge a fair market value for the services. Please refer to F.S. 400.474(6)(b). F.S. 400.462(14) defines “home health services” as “health and medical services and medical supplies furnished by an organization to an individual in the individual's home or place of residence.”

14.8.3 A home health agency operates a satellite office in an assisted living facility. The residents of the facility may stop in this office if they have a health care problem and the home health agency nurse will check them without cost to see if a referral needs to be made to resident’s physician. Is this allowable?

Answer: No.

14.9 - Other Questions

14.9.1 Does F.S. 400.474(6)(e) prohibit a home health agency from entering into a contract with All-Scripts (ECIN)? This software is used by the hospital discharge planning staff. There is an understanding that referrals can be faxed to home health agencies, but it would be easier to receive the referral on the computer.

Answer: No. See AHCA letter on AllScripts.

14.9.2 May a hospital “require” its staff to refer patients to a home health agency owned by or sharing ownership or controlling interests with the hospital?

Answer: No. Such a requirement violates the hospital federal regulation. 42 CFR 482.43.

14.9.3 How does a home health agency report that its Director of Nursing left the home health agency or that the home health agency hired a new Director of Nursing?

Answer: Send a letter, facsimile transmission or electronic mail message to the Home Care Unit of the Agency.

The mailing address is:

Home Care Unit, Attention Charlene Corley
AHCA Home Care Unit
2727 Mahan Drive – Mail Stop 34
Tallahassee, FL 32308
 
The facsimile transmission number is (850) 922-5374.
The electronic mail address is charlene.corley@ahc.myflorida.com.

Go to Section 16 in the Frequently Asked Questions for information on how to do a personnel change.

14.9.4 May a home health agency contract with another home health agency to provide some services to its patients?

Answer: Yes, as long as all requirements in state law are met.

14.9.5 If a home health agency #1 offers patients to home health agency #2, can home health agency #2 contract with that agency to provide the services or staffing?

Answer: No.

14.9.6 Can a home health agency contract with a health care services pool to provide services to its patients?

Answer: No. Please see related question 13.3

14.9.7 If a health care services pool offers patients to a home health agency, can the home health agency contract with the services pool to provide the services or staffing?

Answer: No.

14.9.8 Under F.S. 400.471(9), an application for a new home health agency license cannot be transferred to another home health agency or controlling interest prior to issuance. Does this apply to changes in members of a limited liability company?

Answer: Yes

14.9.9 Is accreditation required when ownership changes?

Answer: Yes

14.9.10 May the owner of a home health agency purchase another home health agency that is located less than 10 miles away?

Answer: No.

14.9.11 Does a new home health agency need to be accredited in order to receive a home health agency license?

Answer: Yes.

14.9.12 Does a home health agency that will not provide any skilled services, but will be limited to only home health aide, certified nursing assistant, homemaker and companion services, need to be accredited in order to get a home health agency license?

Answer: Yes.

14.9.13 How does someone make a complaint about a home health agency that is violating the law?

Answer: Call the AHCA complaint call center (888) 419-3456.

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