Florida Motor Vehicle No Fault Law

As I mentioned in my last post, the Florida Supreme Court’s decision to approve the Florida Senate’s amended redistricting plan wasn’t the only late April 2012 decision to bring a measure of closure to unsettled legal issues. The stars seem to have aligned such that our state appellate courts as well the U.S. Court of Appeals for the 11th Circuit all released decisions in late April bringing a measure of closure on prominent, unsettled issues.

First, in Geico General Insurance Co. v. Virtual Imaging Services, Inc. (a/a/o Maria Tirado), No. 3D11-581,the 3rd DCA went a long way toward finding closure on the hotly contested issue of whether PIP insurers can take advantage of the reimbursement rate caps provided in the 2008 amendments to Florida’s No Fault/Personal Injury Protection Law if their policies don’t expressly state that the caps will be used. That issue, on which the 4th DCA had the first word among Florida appellate courts in its 2011 decision in Kingsway Amigo Insurance Company v. Ocean Health, Inc., has pre-occupied PIP lawyers ever since. I’ve also written multiple posts about it, including this one, this one, and this one.

In its Tirado decision, the Third District did a tremendous favor for opponents of the rule set down in Kingway Amigo (PIP insurers and their lawyers chief among them) by certifying the issue as a question of great public imporance. You may recall that the lack of an express and direct conflict among the District Courts of Appeal on the issue has prevented the Florida Supreme Court from stepping in end the controversy.

But now the issue has been certified as a question of great public importance, the Florida Supreme Court can exercise jurisdiction to review Tirado even without a conflict among the DCAs. If the Supreme Court chooses to do so, as the ultimate arbiter of Florida law, it can bring closure to this ongoing PIP battle. I’m guessing that it will.

Second, in the parallel cases of Calder Race Course, Inc. v. Florida Department of Business and Professional Regulation, West Flagler Associates, Ltd. v. Fla. DBPR, and Florida Gaming Centers, Inc. v. Fla. DBPR, the Florida Supreme Court brought closure on the issue of whether the legislature validly exercised its Constitutional authority in enacting 2009 legislation that allowed Hialeah Race Track to operate slot machines. That legislative enactment had been challenged by the three Miami-Dade facilities that were already licensed to operate slot machines prior to the legislation, as discussed in this post. On the same day as its redistricting decision was released, the Supreme Court declined to exercise its discretionary jurisdiction over the competitors’ appeal from the 1st DCA’s decision upholding Hialeah Race Track’s authorization to operate slot machines.

Third, the 11th Circuit released its long awaited decision in FTC v. Watson Pharmaceuticals, Inc., (a/k/a In re: Androgel Antitrust Litigation) addressing the prominent antitrust/patent/health care law issue of the validity of so-called “reverse payment” or “pay for delay” settlements between pharmaceutical patent holders (i.e. name brand drug makers) and competing drug makers seeking to market generic alternatives. The FTC and the Antitrust Division of the DOJ, in addition to certain academics have fretted for years about such arrangements, and their effects on drug prices…

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The Florida Motor Vehicle No Fault Law has been described over and again by the Florida Supreme Court as designed to “provide swift and virtually automatic payment” for medical treatments to car accident victims “so that the injured insured may get on with his life without undue financial interruption.”  [E.g., Custer Med. Ctr. v. United Auto Ins. Co., No. SC 08-2036, 2010 WL 4340809]. 

But under recent 4th DCA decisions, payment of Personal Injury Protection (PIP) benefits for medical treatment seems anything but “virtually automatic.”  For every PIP claim they submit, providers are now responsible for knowing in advance, and specifying on their claim forms, the exact amount the insurer is required by law to pay for the treatment at issue.  Getting paid from PIP benefits has thus become even harder than claiming payment from standard health plans. 

 Background – the PIP Statute

In case you need a refresher on the PIP payment procedure (codified at Florida Statutes Section 627.736) here’s my simplified gloss:

1. Insured accident victim sees medical provider.

2. Medical provider must notify the accident victim’s car insurer of the fact and amount of the claim within 35 days of treating the insured (or must give notice of starting treatment within 21 days, and submit bills within 75 days);

a. On an approved standard claim form that includes the amount of the claim and the provider’s medical license information;

b. Charging the insurer and the insured “only a reasonable amount,” determined by looking at the provider’s usual charges for the services in question, other providers’ charges for those services, insurers’ fee schedules, and other information; (More on this detail later).

3. Insurer reimburses medical provider;

a. A reasonable amount based on statutory criteria; or

b. May limit its payments to 200% of the amount allowed by Medicare Part B for non-hospital treatments, or if not covered by Medicare Part B, to 80% of the maximum amount allowed for workers’ compensation claims.

4. The insurer must pay within 30 days of receiving “reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy.”

5. Payment is “overdue” if not made within 30 days, unless “the insurer has reasonable proof to establish that the insurer is not responsible for the payment.”

6. If the insurer doesn’t pay the provider, the provider must send the insurer a demand letter.

a. The demand letter can’t be sent until the payment is “overdue”; and

b. Must “state with specificity” the name of the provider that treated the insured and “each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.”

7. If the insurer pays in response to the demand letter, it must pay also pay a 10% penalty, up to $250.

8. If it still doesn’t pay, the provider or insured can sue, and if successful, recover the claimed amount, the 10% penalty, and attorneys’ fees.

In other words, at first glance, PIP appears to work like other health insurance.   The provider submits a claim, the insurer determines whether it’s covered, and if so, it pays.  One would assume that the amount the provider may charge may be greater than the amount the insurer deems to be reasonable or whatever other measure it uses to value claims, and that the insurer will pay less than the amount billed.   The difference is that PIP is “swift” and “automatic”: coverage is automatic up to $10,000 regardless of fault; time periods are shorter; there are penalties for paying late, and there’s a procedure for resolving disputes quickly. 

Does the PIP Statute Seek to Prevent Providers From Asking for Too Much?

In its May 4, 2011 decision in MRI Associates of America, LLC v. State Farm Fire & Casualty Company, No. 4D10-2807, the 4th DCA held that the PIP statute streamlines payment procedures in another way: By eliminating “gamesmanship” in the prices providers charge for treatment.

The result of MRI is perhaps not a shock for providers in Palm Beach County that regularly treat PIP insureds, because the Palm Beach Circuit Court reached the same result in an influential 2007 decision. (Because PIP cases by definition, involve less than $10,000 in controversy, in Florida’s court system structure, they are tried in County Courts. Three-judge panels of Circuit Court judges hear most appeals and often have the final word on PIP issues.)

But other providers may be surprised to learn that if they want to get paid by a PIP insurer, they will have to submit a claim stating not the amount the provider charges for treatments, but the amount the insurer will pay for the treatments under its policy.

The Facts Underlying the MRI Decision

The provider in MRI submitted claims of $1816.17 and $1707.33 for administering MRIs to the insured.  The insurer denied the claims.  The provider then sent a demand letter restating the charges claimed.  The demand letter also said the amounts of the claims “if Paid at 80%,” would be $1146.22 (which is actually 80% of $1432.78) and 1061.31 (80% of $1326.64).

The Holding of MRI

The 4th DCA held that the provider’s demand letter was premature, because despite the passage of more than 30 days since the provider billed the insurer, payment to the provider wasn’t “overdue.” Why not? According to the court, the provider had never the insurer “notice of the amount due” for treating the insured.

True, the provider had submitted a claim form to the insurer. But, the court explained, the claim form request payment of the amount charged by the provider, not “the exact amount owed under the statute”, which the court said, at that time was capped at 175% of the Medicare Part B maximum in 2001. So the claims did not give the insurer “written notice of the fact of a covered loss and of the amount of” the loss. Without that notice, no payment ever became overdue.

While unstated in the court’s opinion, if no payment became ever overdue, no payment ever became due either. And since 35 (or 75) days have passed since the treatment, the result of the 4th DCA’s holding seems to be that provider is out of luck – and the insurer is off the hook.

The Court’s Reasoning

Here’s the rub. The court took a circuitous route to reach its conclusion. That’s because subparagraph (5)(d) sets forth the claims procedure and doesn’t say that claims must “specify the exact amount owed under the statute.” It only says that the provider must completely fill out one of the approved standard claim forms and submit it within the specified time period.

It’s only in describing the requirements of demand letters, in subparagraph (10) that the PIP statute requires the provider to “state with specificity” the names of all treating medical providers and to provide “an itemized statement specifying each exact amount…claimed to be due.”

But the 4th DCA held that both claim forms and demand letters, based on the reasoning of a Palm Beach County Circuit Court decision in an appeal from County Court. The analysis involves two steps. First, the 4th DCA read subparagraph (10)’s “exact amount…claimed to be due” language as requiring demand letters to state not the amount of the provider’s charges, but “the exact amount owed under the statute” per the insurer’s policy.

Then the court observed that subparagraph (10)(b)3 says that a completed claim form “may be used as the itemized statement,” required in a demand letter. If it can be used for that purpose, the 4th DCA reasoned, a completed claim form, must also state the “exact amount owed under the statute.”

My analysis below the fold.  

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