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Summer 2012
IN THIS ISSUE
d&G Lawyer News

  • Governor Signs PIP Statute Overhaul
  • By: Michael R. Bray
    Florida's Motor Vehicle No-Fault Law, commonly referred to as "the PIP statute" or the "No-Fault Law," requires motorists to carry at least $10,000 of no-fault insurance, also known as personal injury protection, or "PIP" insurance coverage. The purpose of the No-Fault Law is to provide for medical, surgical, funeral, and disability insurance benefits without regard to fault. That is, the injured party's own PIP insurance generally pays his or her medical expenses, up to $10,000. In return for assuring payment of these benefits, the No-Fault Law places limitations on the right to bring lawsuits arising from motor vehicle accidents. On Friday, May 4th, 2012, Governor Scott signed into law sweeping changes to Florida's PIP statute. A copy of the bill can be found at the Legislature's website. There are numerous revisions, many of which will carry major consequences for Florida's medical providers and those injured in an automobile accident, as well as the attorneys who represent them. Some of the many changes are briefly summarized below:

    Must Seek Treatment Within 14 Days

    Among the changes is a new requirement that persons injured in motor vehicle accidents must generally seek medical care within 14 days of the accident. If an injured person waits until after that two week period elapses, he or she may become ineligible for PIP benefits.

    Emergency vs. Non-Emergency Medical Conditions

    Under the new PIP statute, the full $10,000 of PIP coverage will only be available if the injured party's treating physician determines that the injuries constitute an "emergency medical condition." Under the new law, the term "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.
    If the treating physician does not determine that the patient had an injury that resulted in an "emergency medical condition," the patient’s available PIP benefits may be limited to a maximum of $2,500.

    Massage and Acupuncture are no longer covered

    The new PIP statute places new limitations on the types of treatment available to injured persons seeking PIP benefits. While previously available, massage therapy and acupuncture services will now be specifically excluded from the list of services compensable under PIP insurance policies.

    Effective Date Glitch May Impede Payment to Many Providers Before January 1, 2013

    In its haste to reform the PIP statute, it seems that the Legislature overlooked a significant glitch that could give PIP insurers an opportunity to decline or delay payment to some health care providers. The bill appears to create a time gap related to the types of providers eligible to receive payments under PIP. The bill provides that, except for certain exemptions, only certain health care clinics may receive PIP benefits as of July 1, 2012. However, the exemptions, which apply to a wide range of health care providers, do not go into effect until January 1, 2013. Therefore, during that six-month time period, insurers might decline to pay those health care providers who will not become exempt until January 1, 2013. The Governor and legislators are aware of the problem, but have attempted to reassure the medical community and insureds by suggesting that the time gap will be fixed by agency rulemaking or by an executive order. However, the Agency for Healthcare Administration ("AHCA") has not yet issued any proposed regulation, nor has the Governor's office indicated that an executive order correcting this time gap is forthcoming. Therefore, at the very least, health care providers should consider getting confirmation of coverage before billing PIP insurers in lieu of obtaining direct payment from their patients.

    Other Significant Changes in the New PIP Law

    The new PIP law contains various other important changes, of which healthcare providers, insureds, and attorneys need to be aware:
    • The PIP fee schedule provisions will be amended.
    • Insurers will be allowed to limit payment to the PIP fee schedule, but only if the insurance policy includes a notice at the time of issuance or renewal to that effect. Notably, however, there are two conflicting effective dates (July 1, 2012 and January 1, 2013) applicable to this provision of the legislation. Therefore, it is unclear when insurance companies will be able to rely on this provision.
    • An insurer’s failure to timely pay PIP claims as a general business practice is deemed an unfair and deceptive trade practice.
    • The PIP payment period can be tolled when fraud is reasonably suspected.
    • Insureds will be required to comply with all policy terms, including requests for examination under oath.
    • There will be a rebuttable presumption that the failure to appear for two mental or physical examinations constitutes an “unreasonable refusal” to submit to examination.
    • In "any dispute under the provisions of ss. 627.730-627.7405" attorneys' fees must now be calculated without the use of contingency risk multipliers. Also, the new statute provides guidelines for judges to consider in determining whether the amount of an attorney fee award is appropriate, and requires judges to make specific findings as to attorneys' fees when requested to do so by either party.
    • Health care practitioners found guilty of insurance fraud may have their licenses revoked for five years.
    • Certain specific actions are set forth as constituting fraud.
    Legislature Expecting Premium Reductions

    On a brighter note, the Legislature is expecting significant reductions to the PIP insurance premiums paid by Florida's consumers. To attempt to predict those savings, the new statute requires the Office of Insurance Regulation to contract with a consultant within 60 days of the effective date of the new statute to calculate the savings expected as a result of the changes to the statute. By October 1, 2012, the Legislature expects insurers to institute a 10% decrease in their overall base rate for PIP insurance, and insurers not meeting that requirement must include in their rate filings detailed explanations why a 10% reduction was not achieved. Similarly, the Legislature expects a 25% decrease by January 1, 2014, and once again, insurers not meeting that goal will be required to explain why not. It will be interesting to see whether the insurance companies will actually offer any such reductions in premiums.

    Conclusion

    The new changes to the PIP statute are both extensive and complex. de la Parte & Gilbert, P.A. has experience representing and counseling health care providers and injured parties in disputes with PIP insurers. Our firm also frequently co-counsels with other attorneys in PIP matters. For more information, contact attorneys David Caldevilla, Patrick McNamara, and Michael Bray at (813) 229-2775, or by email at dcaldevilla@dgfirm.com, pmcnamara@dgfirm.com, and mbray@dgfirm.com.
    101 E. Kennedy Blvd., Suite 2000 | Tampa, FL 33602 | 813-229-2775 Fax: 813-229-2712
    Email: info@dgfirm.com | Site: www.dgfirm.com
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