The Nuts & Bolts of Florida’s PIP Law 2012/2013

2. The Nuts & Bolts of Florida’s PIP Law 2012/2013 Bradford Cederberg, PA

3. Initial Services and Care • In order to receive PIP benefits, an injured person MUST seek “initial services and care within 14 days of the motor vehicle accident. Initial services and care may be provided by, supervised, ordered OR prescribed by: • MD • DO • Dentist • Chiropractor, or • Provided in a hospital • Provided by a facility that owns/is owned by a hospital • Ambulance/EMTs • Failing to seek treatment within 14 days will result in a complete forfeiture of your PIP benefits.

4. Follow Up Services and Care • May be obtained upon a referral from any of the 7 providers of initial services and care. • Treatment MUST be “consistent with the underlying medical diagnosis rendered.” It is anticipated that there will be a lot of litigation regarding “underlying medical diagnosis” and “care consistent with” this diagnosis.

5. Follow Up Services and Care • May be provided by, supervised, ordered OR prescribed ONLY by: • MD/DO/Dentist/Chiropractor • A Physician’s Assistant (PA) or an Advanced Registered Nurse Practitioner (ARNP) working under MD/DO/Dentist/Chiropractor • A hospital/ambulatory surgical center • An entity wholly owned by MD/DO/Dentist/Chiropractor and their spouse/parent/child/sibling • An entity that owns/ is owned by a hospital • A (PT) Physical Therapist IF the referral is made to the PT by MD/DO/Dentist/Chiropractor • Certified Health Care Clinic

6. I’ve Been in an Accident and Need Medical CareWhat Do I Do?

7. Reimbursement • The patient will be eligible for $10,000.00 if an MD/DO/PA/ARNP has determined that the injured person had an Emergency Medical Condition (EMC). • The patient will be eligible for a maximum of $2500.00 if any of the providers who rendered initial care or follow up care determines that the injured person did not have an Emergency Medical Condition.

8. EMC Changes the Bank Balance EMC $2,500 $10,000

9. Reimbursement • Emergency Medical Condition Defined (Fla. Stat. 627.732(16) “Emergency medical condition” means a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: • (a) Serious jeopardy to patient health. • (b) Serious impairment to bodily functions. • (c) Serious dysfunction of any bodily organ or part.

10. Reimbursement • According to the Statute, a Chiropractor cannot determine if an Emergency Medical Condition exists, but can determine that an Emergency Medical Condition does not exist.

11. Reimbursement • The Statute does not say where in the course of treatment the EMC must be determined. • It does not reference whether EMC is established in either the initial care or follow up care, nor does it say that an initial treating provider or follow up provider must be the one to determine that an EMC existed.

12. Massage Therapists/Licensed Acupuncturists • There are NO benefits for massage therapy or acupuncture. • It does not matter what entity or licensed provider is rendering the service. Massage and acupuncture will not be reimbursed to an LMT, licensed acupuncturist or any other type of provider rendering those services.

13. Creation of PIP Log Mandatory • The carrier is now obligated to create a PIP log of benefits paid by an insurer. • The log does not have to be provided before a PIP suit is filed. The log must be provided if litigation has commenced, only to the insured, if requested, within 30 days of the request. • No remedy set forth for non-compliance, although a claim for declaratory relief would be appropriate.

14. Notification of Exhaustion of Benefits • If a PIP suit is in litigation and the provider requests notification of benefit exhaustion, the insurer must notify the insured/assignee within 15 days after PIP benefits have been reached. • There is no obligation to provide this information prior to PIP litigation, no obligation to provide it unless requested and no remedy for a carrier’s failure to notify of exhaustion.

15. Fee Schedule • The Medicare and Workers Compensation fee schedules that were introduced in 2008 remain a part of the statute and in place, but have been clarified to reflect that the Participating Provider allowable is the amount to be used. • Medicare Part B is to be used for services; supplies and Durable Medical Equipment (DME) are reimbursed from the DME Medicare Part B fee schedule.

16. Fee Schedule • The fee schedule in effect on March 1st of the year in which the services were rendered is to be used to calculate reimbursement amounts for that calendar year, but the allowable cannot be lower than the 2007 Medicare rates.

17. Fee Schedule • NCCI Edits and OPPS reductions are now permitted “if it doesn’t constitute a utilization limit.” • An insurer is not prohibited from using the Medicare coding policies and payment methodologies, including appropriate modifiers, to determine the applicable amount of reimbursement for medical services if it does not constitute a utilization limit. • For example, if an office visit is charged and any other care is provided, the CPT code for the office visit requires a modifier 25.

18. Fee Schedule • Must a carrier specifically include a policy endorsement in order to use the lower reimbursement amount (fee schedule) set forth in the PIP statute? • The answer intended by the legislature when they amended 627.7311 is “no”; however, the applicable section of 627.736 directly conflicts with this. • This issue will only be resolved through PIP litigation.

19. Payment of BenefitsEOBs • In the event of a partial payment or rejection, the carrier must provide an Explanation of Benefit that specifies the error or reason for rejection of the bill. • A provider has the option to submit a corrected claim within 15 days of the receipt of the EOB and it will be deemed a timely submission. (No more USAA denials for “untimely resubmission.”) • Resubmission is not mandatory and it does not waive any other legal remedy for payment.

20. Payment of Benefits$5,000 Reservation of Benefits • This is intended for providers of emergency services and care and inpatient hospital treatment rendered by MDs/DOs/Dentists. This does not include hospitals. • If an emergency service provider submits claims within 30 days of notification of a covered loss, those providers should be paid before the Hospital bill can exhaust the PIP benefits.

21. Payment of Benefits$5,000 Reservation of Benefits • Hospitals should NOT be receiving payments up to the PIP limits unless emergency service providers did not submit their bills in within the 30 day window. • Providers of emergency services and care have priority to $5,000 of the $10,000 in PIP benefits only if their bill is received within 30 days of the date the carrier learns of the accident.

22. Payment of Benefits90 Day Tolling if Fraud is Suspected • If fraud is suspected, the carrier must notify the provider in writing within 30 days of the receipt of the claim that it is being investigated for suspected fraud. • If notification is made, it extends the time to conduct the fraud investigation. • The claim must be denied or paid with interest within 90 days of submission. • The suspected fraud must be reported to the Department of Insurance Fraud.

23. Payment of BenefitsThe “Glitch” • Due to poor drafting, there is a glitch in the PIP statute that will exist from July 1, 2012 to January 1, 2013. • Section 400.9905(4) requires all entities seeking PIP reimbursement to be registered as a Health Care Clinic with AHCA effective July 1, 2012. • The portion of the statute that exempts practices wholly owned by MD/DO/Dentist/Chiropractor, hospitals, ambulatory surgical centers or medical schools does not go into effect until January 1, 2013.

24. Payment of BenefitsThe “Glitch” • As of July 1, 2012, the only facilities legally able to be reimbursed under PIP are those clinics which are registered as Health Care Clinics under AHCA and have been in existence for more than 3 years. • Upon learning of this, AHCA General Counsel issued a memorandum indicating that the Agency believes both statutory sections become effective on January 1, 2013, thereby eliminating the glitch.

25. Examinations Under Oath (EUO) • Examinations Under Oath (EUO) are now a condition precedent to receiving PIP benefits. • This is in direct response to the 4th DCA opinion in Maximus/Custer which (rightly) explained that attendance at an Examination Under Oath (EUO) is a condition subsequent, not a condition precedent to receiving benefits.

26. Examinations Under Oath (EUO) • The legislative change, which is completely at odds with the legal definition of a condition precedent, shifts the burden of proof from the Defendant to the Plaintiff and drastically lowers the threshold to be met for a carrier to deny a claim. • If your patient does not attend an EUO, the carrier has a strong argument that you do not have to be paid and cannot file suit until the patient complies.

27. Examinations Under Oath (EUO) • Only an insured or an omnibus insured (passengers or other people who may be covered under the policy, but are not named on the policy) must attend the EUO. A health care provider is not required to attend an EUO. • The questions in an EUO are limited to relevant information including accident details, coverage eligibility, or claimant information, or information that could be reasonably expected to lead to relevant information.

28. Independent Medical Examinations • The carrier used to be required to prove that an insured “unreasonably refused” to attend an IME, showing both that there was a refusal and that it was unreasonable. • The language change now makes a refusal to submit or a failure to appear at two independent medical examinations a rebuttable presumption that the refusal/failure was unreasonable. • This alters the burden and the standard to favor carriers.

29. Miscellaneous ProvisionsCarriers with a History of Nonpayment • It is now considered unfair and deceptive trade practice if, as a general business practice, carriers conduct business as follows: • The carrier fails to pay PIP claims • The carrier fails to pay them until a PIP demand has been received. • To counter this practice, provider will need to keep track of claims that are not paid at all and those that are paid, but not until a demand is sent.

30. Miscellaneous ProvisionsFraud Fighting: Non-Reimbursement of Claims • Claims are not reimbursable if they are generated as a result of unlawful activities outlined in chapter 817.505 of Florida Statutes. • Providers engaging in referring patients for payment, receiving payment for a referral of patients, engaging in patient brokering or receiving kickbacks are committing fraud. These claims are not compensable.