PIP insurers are always seeking out creative ways to defend personal injury protection cases. From failure to submit a valid demand letter, to provider-executed assignments of benefits lacking the requisite standing, insurers are attempting to minimize their liability/damages. I have encountered a new phenomenon, which can be titled as, “Medical Provider failed to maintain adequate records.” Insurers are including this medical record allegation as an affirmative defense to excuse or justify non-payment or underpayment of PIP Benefits.
What is the insurer actually alleging?
Generally, the failure to maintain adequate records is a two-fold defense. The insurer initially states that the medical charges at issue are not compensable because they were not lawfully rendered by the plaintiff. In plain English, they are simply alleging that the provider did not set forth certain medical bases, such as the diagnosis of the patient, the evaluation, basis for care, etc.
Secondly, the insurer further alleges that the medical records were not compliant with the pertinent American Medical Association (AMA) guidelines. As part of this defense, they may also indicate that the medical records failed to comply with Florida Administrative Code 64B2-17.0065. This two-fold defense is not persuasive. The PIP law does not mandate a standard for medical record keeping. If the legislature truly wanted to regulate medical record-keeping, it would have done so and added language in Florida Statutes Section 627.736. Let’s review both allegations in greater detail.
First Defense: We won’t pay you because your charges are not reimbursable.
This statement is completely incorrect; these charges are compensable! The failure to maintain adequate medical records does not render medical charges not compensable. If a statute or section of the PIP law does not state that a certain defense can restrict payment of benefits, a PIP policy cannot include these conditions to coverage. Basically, if the legislature wanted to put language into the PIP statute to prevent a PIP provider’s bill from being paid, it surely could/would have done so.
Medical providers have an obligation to maintain a certain level of medical record keeping. However, the failure to do so does not invalidate a PIP claim, nor does it render a provider’s treatment unlawful or non-compensable. A medical provider is under no duty, nor is there any judicial/legislative mandate for a provider to submit medical records in order to be paid for providing PIP services/treatment. Similarly, a medical provider who renders medical services/treatment does not need to maintain medical records to meet any standard for thoroughness as a “precondition of payment by an insurer.”
Failure to maintain medical records is simply not a proper defense in a PIP case. The PIP statute fails to provide that adequate record keeping is a lawful basis for non-payment of PIP benefits. Although medical providers have certain duties and responsibilities to maintain adequate records, PIP insurers cannot deny payment because the medical provider failed to uphold their standard of record keeping.
Second Defense: Medical records were not maintained correctly, according to AMA and some Florida administrative code rules.
Who cares! Firstly, AMA guidelines are not PIP guidelines. The legislature did not choose to include this defense in the PIP law. An insurer cannot create conditions in their policy that directly conflict with the existing PIP law. (Although parties are welcome to contract among themselves for more than the law provides, parties are not able to contract for less than the law allows). If PIP law says no minimum requirements or leaves record-keeping requirements out of the statute/law altogether, an insurer cannot include the same in their policy.
What is the Florida Administrative Code 64B2-17.0065?
Florida Administrative Code 64B2-17.0065 provides rules for chiropractors and their assistants. These rules specify the minimal recordkeeping requirements for chiropractic physicians and chiropractic assistants. Once again, failure to maintain adequate record-keeping, whether a chiropractic physician or an orthopedic physician is not a proper PIP mechanism to justify omitting payment to the treating medical provider.
Moreover, Florida Administrative Code 64B2-17.0065 solely deals with chiropractors. In the event that the court believes the failure to maintain adequate records is actually a PIP defense (a rarity, although, not impossible) a simple argument can be made that the medical provider is a physical therapist or orthopedic physician, and thus this administrative code defense must be stricken, as an orthopedic doctor or a physical therapist cannot be governed by the same standards as a chiropractic physician.
Likewise, if the insurer fails to state why the medical records were not in compliance with the relevant Florida administrative code section, counsel can simply move for the defense to be stricken as vague and confusing. Similarly, if the insurer fails to cite the exact language that it relies on, counsel can move for the defense to be thrown out! It is essential for the insurer to be specific so that the medical provider and its counsel know exactly what the insurance company is alleging was incorrect.
Failure to maintain adequate medical records whether based on AMA or Florida Administrative Code rules is a legally insufficient defense.
The legislature did not mandate that the provider submit medical records in order to be paid nor that they meet any standard of thoroughness as a “hoop to jump through” to be reimbursed. The PIP statutes absolutely do not require medical records to be stored or kept a certain way. It is important to contact an experienced PIP litigation attorney to ensure that all improper defenses are stricken, meaning that the judge forces the defendant to no longer rely on it and remove it. It is equally as important to discuss non-payments or lesser payments with an experienced litigation attorney to ensure that your rights are protected.