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What Is Left For You To Recover: PIP Is Still Viable

Personal Injury Protection (PIP) is still a viable source of income for most medical providers. The recent changes to the PIP law have contributed to a dynamic litigation climate. PIP insurers are looking to this new statute to avoid paying claims. However, do not fear, you may still recover what’s rightfully yours so long as you adhere to a strategic plan of action. Below, I will discuss the essential steps to ensure a successful PIP recovery process.

14 Days to Treat

This step in the PIP process is essential. A patient must treat with a medical provider within 14 days of the motor vehicle accident. Case law does not afford any exceptions to this rule. Make sure to include a notation within your medical records indicating that the patient is being seen for injuries sustained in a motor vehicle accident. PIP insurers cannot deny a claim for failure to treat within 14 days if your notes support treatment. Lastly, ask your patient for the name of the initial provider he/she treated with. We can easily obtain medical records to verify if the insurer has a valid 14-day treatment defense.

Note: Do not confuse the 14 days to treat with the Emergency Medical Condition (EMC) requirement. The EMC requirement does not have an arbitrary timetable similar to the 14-day-to-treat mandate.

Material Misrepresentation

Many insurers assert misrepresentation in the insurance application process such as:

  1. The failure to list individuals who reside in your household
  2. Failure to list drivers of the motor vehicle
  3. Failure to indicate that a child over the age of 15 (depends on policy language) is residing in your household

PIP insurers are notorious for asserting material misrepresentation. The three scenarios listed above are the most common for material misrepresentation allegations. The insurer will send a letter in response to your bills indicating that the policy is void due to a failure to disclose certain material information on the insurance application. The insurer will state that a premium check is being refunded to the insured. This action voids the policy. It’s as if the policy never existed.

It is important to tell your patient to hold off on cashing any premium check they receive from the insurer. If your patient disputes the allegations of the material misrepresentation, it is most likely a farce, to begin with. We’ll contact the insurer for you and explain the situation. If the insurer doesn’t relent, we’ll proceed to filing suit. Fear not, there are actually case law holding that cashing the check does not necessarily preclude PIP benefits so long as there is proof that the allegations weren’t true. For example, if a child doesn’t live full-time with a parent, and visits frequently, how can the insurer allege material misrepresentation for failure to disclose that household member? Unfortunately, this happens. However, we have a plan of action to rectify the situation.

Fee Schedule

Insurers continue to incorrectly reimburse you, the provider, despite the new amendments allowing for fee schedule election. An insurer is permitted to pay pursuant to the Medicare Fee schedule as long as they do so in a clear and unambiguous manner. However, many insurers are paying pursuant to the incorrect fee schedule. The new PIP statute requires insurers to pay the greater of the Medicare Fee schedule for the year in which the treatment is rendered and the 2007 Medicare Fee schedule. If the insurer pays the lesser of the two, you have a viable PIP suit. If the insurer pays pursuant to another year altogether, again, a viable PIP suit exists. Do not trust the insurer to properly reimburse you. Medicare coding does not give the insurer the right to pick and choose what year is the most appropriate for reimbursement.

Note: Most insurers’ policies elect the permissive fee schedule. Make sure to look out for Medicare coding such as MPPR, NCCI, OPPS, etc. It’s quite possible that these codes lead to the wrong reimbursement due to the incorrect fee schedule year being applied.

IME Cut-off and Fee Schedule

Florida Statutes Section 627.736(7)(a) governs IMEs. An insurer is permitted to challenge the reasonableness, relatedness, and medical necessity of your medical treatment. However, many insurers are paying for certain services and refusing to pay others. Insurers will then allege they have reimbursed the provider in full. This scenario requires a lawsuit to be filed. We’ll ensure that your bills are paid. Most IME doctors are quacks who have been doing these peer reviews/IME reviews for years upon years. They will write down whatever the insurer directs them to say. We’ll work to strike their opinions and recoup payment for all services that were subject to the IME “cut-off.”

Important Tip: Continue billing each additional date of service despite the IME cut-off. We’ll include/demand all dates of service in the subsequent PIP suit.

Res Judicata

Res judicata is an ancient Latin term for “a thing adjudicated.” In PIP terms, you cannot dismiss a suit with prejudice and attempt to re-file it again. Once a lawsuit is decided, the same issue cannot be contested again. However, case law is on our side. If we filed a lawsuit and it is dismissed without prejudice, nothing has been decided on the merits. Thus, res judicata wouldn’t preclude us from filing another lawsuit in the same jurisdiction.

What does this mean for you? An illustration of a typical res judicata scenario:

You requested that your attorney dismiss a suit because you weren’t pleased with his/her work. That attorney dismissed it without prejudice. We are permitted to re-file that same suit because a final judgment wasn’t entered in the initial case.

Despite the Legislature’s decision to make our PIP statute more insurance friendly, there are certain loopholes and ways to successfully conduct PIP business. We are your one-stop shop for everything PIP. We provide litigation services, consultations, and overall PIP tutorials on how to properly structure your PIP side of the practice. Contact an experienced PIP litigation group to ensure that you’re reimbursed fully and properly!

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