allstate permissive language litigation class actions record keeping clinic registration material...
TRANSCRIPT
Legal Technicalities of Florida’s Automobile Insurance Industry:
Increase your Receivables in Auto Accident Cases by
Understanding the Laws.
⧉ Anthony D. Barak, Esq.FL Bar Board Certified in Health
⧉ Christina A. Goldberg, [email protected]
Office: (941) 585-0286Facsimile: (941) 584-4528
Topics for Discussion⧉ ”14-day Rule”
⧉ Emergency Medical Condition (EMC):
-Does patient need one?
-EMC “exhaustion”-Peer-Determined
EMC-Court rulings
⧉ Deductible
⧉ IME/Peer Benefit Suspension: KEEP BILLING
⧉ Allstate Permissive language
litigation
⧉ Class Actions
⧉ Record Keeping
⧉ Clinic Registration
⧉ Material Misrepresentation
⧉ DME Licensing
Intake Basics for PIP
⧉ Intake DocumentsSeen at the scene by paramedics?
Treatment within 14 days?
If it’s information you think you may need, get it
⧉ Assignments of BenefitsNot just a direction to pay
Displays up-to-date corporate and/or fictitious name
Verify business name and/or fictitious name are up to date and registered with Division of Corporations
Intake Basics for PIP
⧉ Referral by MD/DO/DMD/ARNP/PA/DC?
627.736 requires a referral for payment of benefits to a physical therapist
⧉ Use of ICD 10 codes starts October 1, 2015!
Will affect diagnosis and inpatient procedure coding for everyone covered by HIPAA
See Diagnosis Codes under V89.2 for unspecified auto accident treatment
Where do I Look for PIP Coverage?Did the patient seek treatment within
14 days?Yes
No PIP
Patient Own Car?NO
PIP through patient’s carrier
Patient Live with Relative who owns
car?(Blood or spouse)
PIP through patient’s relative
Patient in or around a car at time of
accident?
Yes
Yes
NO
Yes
PIP through vehicle’s insurance
NO
Patient pedestrian or bicyclist?
No PIP
Yes PIP through at-fault driver
PIP Overview – Since 2008 ⧉ PIP = No Fault, PRIMARY Insurance
⧉ Pip Statute “sunset” and January 1, 2008 addition of Permissive Fee Schedule
⧉ No successful legal challenge of the “14-Day Rule.”
⧉ Must bill within 35 days of visit/treatment, UNLESS a Notice of Initiation of Treatment is
filed within 21 days of first visit/treatment – in that case, must bill within 75 days.
⧉ 30-day reservation of $5k PIP benefits for Emergency Physicians
“14-Day Rule”: Do not be confused
⧉ The requirement that a patient receive treatment within 14 days of the date of loss has NOTHING TO DO WITH the separate and distinct Emergency Medical Condition (EMC) portion of
the Florida PIP Statute.
⧉ Treatment by, or treatment prescribed by, an MD/DO/DMD/DC/Hospital/Emergency Transport
Service within 14 days of the crash will qualify.
⧉ No successful legal challenge of the “14-Day Rule.”
Emergency Medical Condition (“EMC”)
Does your patient need one? Technically, NO.
But let’s discuss. . .
⧉ Statute states: benefits MAY BE limited to $2,500.00 IF a treating provider states that there is
NO EMC.
⧉ Insurance companies have this all wrong.
⧉ BEST WAY TO AVOID THE FIGHT:
OBTAIN AN EMC
Emergency Medical Condition (“EMC”)
EMC “Exhaustion”
⧉ Beware of this claim via correspondence
and on EOBs!
⧉ Carriers utilizing the “benefits exhausted” explanation code to denote lack of “EMC.”
⧉ This misleads practitioners, who discontinue billing, believing that the full $10,000.00 has
exhausted.
⧉ Failure to timely bill for services rendered = absolute bar to future collection of unpaid bills.
Emergency Medical Condition (“EMC”)
Peer-Determination: NO EMC
⧉ §627.736(1)(a)4: benefits MAY BE limited to $2,500.00 if a TREATING provider says no EMC.
⧉ Carriers ignore the key word, TREATING, and hire Peer Review doctors to negate treating
provider’s EMC diagnosis.
⧉ We have 100% success rate fighting these denials.
Emergency Medical Condition (“EMC”)
Unfavorable Federal Court Rulings: US District Court for the Southern District of
Florida
⧉ Two cases, same Court, same facts: No EMC determination made
⧉ Court granted Insurers’ Motions to Dismiss in both, stating that an EMC MUST be diagnosed to access PIP benefits in excess of $2,500.00.
⧉ In our opinion, extreme misinterpretation of the law as written, although this case is NOT
binding on Florida State Courts, merely of persuasive value.
Emergency Medical Condition (“EMC”)
Favorable County Court Rulings
Hillsborough County: AFO Imaging, Inc. v. Enterprise Leasing Co. of FL
⧉ Ruling addresses Federal Court’s faulty rulings. ⧉ Important conclusions:
1. NO automatic $2,500.00 “cap” on benefits;
2. EMC is NOT required at any particular time;
3. Distinguishes §627.736(1)(a)3 (a licensed professional may determine EMC) from §627.736(1)(a)4 (only a PROVIDER may determine no EMC);
4. Insurer should use a “6B request” to obtain EMC report.
Emergency Medical Condition (“EMC”)
Favorable County Court Rulings
Polk County: First Choice Chiropractic & Rehab. Ctr. v. Progressive American
Broward County: Dr. Craig Selinger D.C., P.A. v. Enterprise Leasing Co. of FL
⧉ Insurer’s Peer Review doctor was not a “provider” as intended under §627.736(1)(a)4., therefore,
determination of “No EMC” did NOT limit Plaintiff’s right to reimbursement beyond $2,500.00.
⧉ Neither PIP statute, nor case law, permits insurer to challenge provider’s affirmative EMC determination.
Emergency Medical Condition (“EMC”)
Favorable County Court Rulings
Miami-Dade County: Health Diagnostics of Ft. Lauderdale v. USAA Casualty Ins. Co.
“[P]lain language of the PIP statute clearly indicates that an insured is only limited to reimbursement up to $2,500.00 if a provider, which is a physician that treated the patient, determines that the patient did NOT have an [EMC]. Nowhere does the statute provide that an insurer can on its own limit benefits to $2,500.00 or that if no determination is made, coverage defaults to $2,500.00. In fact, an insurer is only entitled to limit benefits to $2,500.00 when a provider, i.e. one of the patient’s treating physicians . . . has affirmatively declared that there was no EMC.”
Deductible Application
What is the Argument?100% of the BILLED amount must be applied to the deductible; Fee Schedule reductions may NOT be
applied until after the deductible is fulfilled.
⧉ Our firm is the only firm with 100% favorable rulings in Sarasota and Manatee Counties on this
issue, having challenged Progressive and Esurance.
⧉ Appeals pending in Circuit and District levels on this issue – too early to get a feel for outcome.
IME/Peer Benefit Suspension
The simple truths:
⧉ We aren’t afraid of IME/Peer cutoffs; ⧉ We fight these; ⧉ We win these.
⧉ But if you don’t keep billing, we have NO CHANCE of getting you paid.
Allstate Permissive Language Litigation
Did Allstate PROPERLY amend its policy to allow for its use of the fee schedule reductions provided for under Florida
Statute?
⧉ Favorable ruling: 4th District Court of Appeal;
⧉ Unfavorable Ruling: 1st District Court of Appeal;
⧉ Pending Ruling: 2nd District Court of Appeal;
⧉ Will likely be appealed to the Florida Supreme Court
Class Action Settlements
Class Action settlements are a complete bar to future recovery of unpaid benefits
if you do not do one of two things:OPT IN -or- OPT OUT
⧉ If you would like to keep informed about Class Actions, please send our office an email requesting to
be added to our email list!
⧉ If you do NOTHING, you get NOTHING.
Record Keeping
Minimal Record Keeping Standards for Medical Practitioners
⧉ In addition to being LEGIBLY maintained and accurately dated, PLEASE make sure that you comply
with Florida Administrative Code 64B17-6.001(h):
Minimum Standards of Physical Therapy Practice:Physical therapists shall keep written medical records
justifying the course of treatment of the patient, including, but not limited to, initial physical therapy
assessment, plan of treatment, treatment notes, progress notes, examination results, test results, and
discharge summary.
Record Keeping
Problems WE see?
⧉ DON’T use “templates” or auto-populating systems that insert standard, non-specific notations like:
“Patient is progressing as expected.”“Patient is improved since last visit.”
“Patient reports no change since last visit.”
⧉ DO note the patient’s subjective complaints, comment as to success/failure of treatments, and
adjust your treatment plan accordingly.
Record Keeping
⧉ PIP Carriers are looking for ways to terminate your patient’s care.
⧉ Will quickly recognize that you continued to utilize the same therapies
on a patient with NO success if your notes are not accurate and complete.
⧉ Remember, your medical records are the insurance’s company’s eyes and
ears. Make them good!
Clinic Registration
You’re Exempt . . .Or Are You?
⧉ Florida Statutes §§400.990 – 400.995 (Health Care Clinic Act), requires that certain clinics be registered with the Agency for Health Care Administration (AHCA).
⧉ BUT WAIT! The requirements under Chapter 400 have nothing to do with billing, and receiving payment, under Florida’s PIP Laws.
⧉ §400.9905(4)(n) contains the following provision:
Notwithstanding this subsection, an entity shall be deemed a clinic and must be licensed under this part in order to receive reimbursement under the Florida Motor Vehicle No-
Fault Law, unless exempted under §627.736(5)(h).
Clinic Registration
So What Does That Mean?
⧉ Regardless of your exemption status under AHCA for purposes of §400.9905, F.S., your clinic must
be licensed under AHCA to receive PIP reimbursement UNLESS:
(1) Wholly owned by an MD, DO, DMD, or DC or by the MD/DO/DMD/DC and his spouse, parent, child, or sibling; or
(2) A hospital/ambulatory surgical center licensed under ch. 395; or
(3) An entity that wholly owns, or is wholly owned by, a hospital licensed under ch. 395; or
(4) An entity affiliated with an accredited medical school.
“Material Misrepresentation”
⧉ Look for denials based upon rescission of policies “ab initio” (from the beginning) for an alleged
“Material Misrepresentation” made on the policy application.
⧉ We are heavily litigating, laying groundwork for establishing bad faith business practices.
⧉ Biggest culprit currently: Windhaven Insurance Company, although others do rely on this defense.
Home Medical Equipment/Durable Medical Equipment Licensing
Do You Need a License?
⧉ Florida Statute §400.93 states:“Any person or entity that holds itself out to the public as providing home medical equipment and
services or accepts physician orders for home medical equipment and services is subject to
licensure under this part.”
⧉ Specifically exempted are:“Licensed health care practitioners who utilize home
medical equipment in the course of their practice, but do not sell or rent home medical equipment to
their patients.”
Home Medical Equipment/Durable Medical Equipment Licensing ⧉ What about health care practitioners who do not
hold themselves out to the public as providing home medical equipment?
⧉ PIP carriers are denying TENS units and other medical equipment if the practitioner does not have
a DME license.
⧉ Is it worth it to challenge and draw unwanted attention from the Board of Medicine?
⧉ Despite the fact that many of you have been told that you do not need to have a DME license, If you are going to bill for home medical equipment, get a
DME license.
⧉ Anthony D. Barak, Esq.FL Bar Board Certified in Health
⧉ Christina A. Goldberg, [email protected]
Office: (941) 585-0286Facsimile: (941) 584-4528