Topics for Discussion

1. Legal Technicalities of Florida’s Automobile Insurance Industry: Increase your Receivables in Auto Accident Cases by Understanding the Laws.

2. ⧉Anthony D. Barak, Esq.FL Bar Board Certified in Health Law tbarak@barakgoldberg.com⧉Christina A. Goldberg, Esq.cgoldberg@barakgoldberg.comOffice: (941) 585-0286Facsimile: (941) 584-4528

3. 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

4. Intake Basics for PIP ⧉ Intake Documents Seen at the scene by paramedics? Treatment within 14 days? If it’s information you think you may need, get it ⧉ Assignments of Benefits Not 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

5. 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

6. Where do I Look for PIP Coverage? Did the patient seek treatment within 14 days? Yes PIP through patient’s carrier Yes Patient Own Car? No PIP NO Patient Live with Relative who owns car? (Blood or spouse) PIP through patient’s relative Yes NO Patient in or around a car at time of accident? Yes PIP through vehicle’s insurance NO Patient pedestrian or bicyclist? Yes PIP through at-fault driver No PIP

7. 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

8. “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.”

9. 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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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. ⧉ NeitherPIP statute, nor case law, permits insurer to challenge provider’s affirmative EMC determination.

15. 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.”

16. 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.

17. 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.

18. 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

19. 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.

20. 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.

21. 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.

22. 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!

23. 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).

24. 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.

25. “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.

26. 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.”

27. 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.

28. ⧉Anthony D. Barak, Esq.FL Bar Board Certified in Health Law tbarak@barakgoldberg.com⧉Christina A. Goldberg, Esq.cgoldberg@barakgoldberg.comOffice: (941) 585-0286Facsimile: (941) 584-4528