PIP & Personal Injury Seminar.pdf

PIP & Personal
Injury Seminar
Hosted by The Fischetti Law Group
Speaker: Michael J. Fischetti, Esq.

Agenda
PIP & Personal Injury Seminar 2023
• About Us
• History of PIP and Personal Injury
• About New Law – Passed House Bill 837
• How You Can Adapt in 2023
• The FutureAhead
• Q&A
3/31/23 2

Q&A
Please take this moment to write down any
questions you may have in the chat – we will
get to as many as possible at the end of the
session! Please leave your name in the chat
so we can email you if we don’t have time to
respond now
PIP & Personal Injury Seminar 2023 3

Introduction
• MichaelFischetti isthe foundingand managing
partnerat the Fischetti Law Group
• Over 18+Yearsof PIP and PersonalInjury
Experience
• Developed key strategiesto ensureyou stay
ahead of thecurvewhen adaptingto the new
law
4

What
Does
PIP
Cover?
• PIP providescoverageof 80% of medical expensesincurred as a resultof an
injury sustained arising out of the ownership,maintenance,or use of a motor
vehicle.627.736.
• PIP providesfor 60% of any loss of gross income arising out of automobile
accident
• PIP providesfor a Death Benefitup to $5,000.
20XX 5

History
of PIP
1972
2001 -
2007
2008
2012
2021
2023
Prior to 1972, Florida was a Tort Based State. The At-Fault
system resulted in long delays in medical bills being paid
because parties would often litigate
Pre-fee schedule, the “old” version of the PIP law was
allowed to sunset. During the sunset period, Florida’s
Legislatures passed, and the Governor signed a new
PIP law. This law took effect on January 1, 2008
In 2008, a permissive fee schedule was put into place. It
allowed insurers to pay 80% of the 200% Medicare or
Worker’s Compensation allowed amount established and
who could own clinics.
2012 PIP as we know it now. The bill revises the
provision of Personal Injury Protection medical benefits
under the Florida Motor Vehicle No-Fault Law, effective
January 1,2013. Added 14-day rule and EMC provision.
2021 Proposed PIP Repeal
Bill (FAILED)
House Bill
837 - Passes

Presentation title 20XX 7
ABOUT THE NEW LAW
H B 8 3 7 / S B 2 3 6
PASSED ON 3.24.2023

The Law
HB 837 / SB 236
• Disclosure of Letters of Protection
• Forces individuals and medical providers to pay their own attorney’s fees when
disputinga denial
• Reducesreimbursement rates for providers
• If the party has no insurance,evidence is limited to 120% of the Medicare reimbursement rate at
the time of trial. If there is no Medicare reimbursement rate that exists for the services,the
admissible amount is 170% the applicable state Medicare rate.
• Reducesthe statute of limitations for negligencecases fromfour years to two
years
• Protects Insurance Companies from any sort of bad faith litigation
• Strikes down the comparativenegligence standardin Florida
• Destroys doctor-patient privilegedcommunicationswhen it comes to patient
referrals
• Premises Liabilitycan now include the individualcommitting the criminal act
What Is In The New Law?

When Does the Law Go Into Effect
• The house and senate bill was presented to the governor on March 24, 2023.
Typically, the governor will wait till the end of the legislative session to sign a
bill. Not shocking, but the governor signed the bill that day.
• For purposes of Statute of Limitations, the bill only affects accidents/incidents
that occur after March 24, 2023.
• Consequently,for all causes of action filed on March 24, 2023 or later, modified
comparative negligence now applies, even if the accident giving rise to the
action occurred years ago.
• The repeal of Florida 627.428 and how it affects attorneys' fees as to policies
written before 3.24.23 is up in the air and will be subject to a great deal of
litigation.
Presentation title 9

Letter of Protection
• A letter of protection is a legal documentthata medicalprovidermay usein a
negligencecaseto ensurepaymentfortheir services in the event of a
settlementor verdict.When a patientis injured as a resultof someoneelse's
negligence,they may seek medicaltreatmentfrom a healthcareprovider.
However, in somecases,the patientmay not have insuranceor other means to
pay for their medicalbills.
• In such situations,a medicalprovidermay agreeto providetreatmenton a
"lien" basis,which means thatthey agree to delay paymentuntilthe patient's
case is resolved.A letter of protection is a written agreementbetween the
medicalproviderand thepatient's attorney thatguarantees paymentforthe
provider's services from the settlementor verdictin the case.
• By obtaininga letter of protection,the medicalprovideragrees toprovide
treatmentto the patientand to delay paymentuntilthe case is resolved.In
exchange,thepatient's attorney agrees to pay the providerfrom the
settlementor verdictobtained in the case.This documentserves as a
protection for the medicalproviderto ensurethatthey will receive paymentfor
their services even if the patient's caseis not successful.

How LOP's are Now Treated
• Under the new Section 768.0427, Florida Statutes, a plaintiff who is working
with a medical provider and using an LOP must disclose:
• A copy of the LOP
• All billings for the rendered medical expenses, with particular coding as applicable that
allows for comparison of the medical expense to other providers or facilities;
• The name of any third party that has received the right to payment for the services and
the dollar amount paid for the purchase of this right;
• Any healthcare coverage that the plaintiff had at the time of treatment, and anyone who
may have referred the plaintiff for treatment under a LOP.
• Under the last bullet point above, the attorney-client privilege regarding
communicationsrelevant to a lawyer’s act of referring the client for treatment is
voided.

Statue Of Limitations on Negligence Cases
• With respect to the statute of limitations,the bill amended Fla. Stat.§
95.11(3)and (4),to reduce the statute of limitationsfor negligence
actions from four (4) years to two (2) years.
• That section applies only to “causes of action accruingafter the effective
date.” Plainingmeaning is that this new statute of limitationswill only
effect cases after the new law was signed.

Bad Faith Protections Expanded for
Insurance Companies
• Codifies that mere negligence in and of itself is insufficient to support a bad faith claim. Rather,
the insurer must not act solelyon the basis of their own interestsin settlement.
• The bad faith or unfair actions of the claimant and claimant’s counsel can still be considered when
analyzing the insurancecompany’s actions.
• Insurance companies are immune to bad faith actions where the insurance company
tenders either the amount demanded by the claimant or the policy limits, whichever is lesser,
within ninety (90) days of receiving actual notice of a claim that is also supported by sufficient
evidence to justifythe amount in dispute.
• When faced with multiple claimants and limited policy limits, the insurance company can now file
an interpleader action or enter binding arbitration to resolve how the limited policy limits are
divvied up among the claimants to avoid bad faith claims.
• Essentially if the insurance company, after being placed on notice, tenders the policy limits on day
89 they are off the hook for bad faith in the overwhelming majorityof cases.

Repeal of 627.428
• Florida Statute 627.428 is a provision in Florida law that pertainsto attorney'sfees in insurance
litigation.Specifically,it allows policyholders to recover theirattorney'sfees if they prevail in a
lawsuit againsttheir insurancecompany.This provision is designed to protectconsumersby
incentivizing insurancecompanies to fairly and promptlypay out claims,as they know they may
be responsiblefor paying the policyholder'slegal fees if they act in bad faith.
• In summary,Florida Statute627.428 providesa way for consumersto recovertheirattorney's fees
in insurancelitigation cases,which can help level the playing field and make it easierfor
policyholdersto challengeinsurancecompanies thatact unfairly.
• This above definition sums up what the purpose of 627.428 was.This statuteis no longer in effect,
and it was not just put in place for PIP cases,but ALL cases involving first party claims.

Florida Changes From Pure ComparativeFault
To Modified Comparative Fault
• Florida previously applied a “pure comparative” fault standard. Under such a negligence
standard, the jury apportions fault among the responsible parties and the plaintiffs’ damages are
proportionally reduced based upon their percentage of liability. Previously, a plaintiff who was
90% at fault could still recover 10% of his or her damages. Under the new law, any plaintiff found
to be more than 50% or more at fault for causing an accident is barred from making a recovery
(a/k/a “51% bar rule).
• It will be critical to get information from a client and mount a fight early on in the case,this will
greatlyaffect intersection and rear end auto accidents.

Use of Contingency-Fee
Multipliers Is Limited
• Multiplierswhen it comes to recoveringattorneysfee will be next to
impossible to obtain.
• This is something that has been phased out over the last five years in
practice and shouldnot have an impact on anyone'spractice,but it is
another example of the far-reachingprotectionsthat bill puts in place for
insurancecompanies.

Reimbursement Rates
• Anyone who qualifiesfor PIP coveragewill be subject to the currentfee schedules in effect for PIP
claims,however,be prepared for a wave of reductions,down codes and other hyper technical denials.
• For providersdoing work on Lettersof Protection it gets more complicated.
• If plaintiff has health carecoverage that is separate and aside to Medicare or Medicaid,evidenceof
amount that could be satisfied if chargesweresubmitted,in addition to portionof medical expenses
under insurancecontract,is admissible.
• If plaintiff does not have insurance,or has Medicare or Medicaid,evidence of 120 percentof Medicare
reimbursementratein effect is admissible.
If there is no applicable Medicarerate,evidenceadmissible is 170 percent of applicablestateMedicaid
rate.

Inadequate Security
• Thisnew law altersthe verdictform in all negligent securitycasesby permitting
apportionmentof fault to thebad actor who committeda crimeagainsttheplaintiff.Before,a
jurywas unableto apportion faultto the thirdpartycriminalactor who intentionallyharmsa
plaintiff.
• Thiscouldhave disastrousresultswhen you have a jurythat wantsto senda messageto a
criminalbut in the end windsup harminga victimand lettingthe propertyowner and the
insurancecompanyoff the hook.
PIP & Personal Injury Seminar 2023 20XX 18

We Can Climb This
Mountain Together!
It Is Not Over…
PIP & Personal Injury Seminar 2023 20XX 19

How To Adapt In 2023+
Survive & Thrive

2023 Best Practices and Protocols
• A Notice of Initiation of Treatment Letter is a letter submitted within 21 days of the first date of
treatment – which allows a provider to then have 75 days to submit the bills.
• If a patient has not yet reported the accident do so immediately. Failure to timely report an
accident can result in denial of a claim.
• Always independently verify pip coverage and proper claim number. Don’t rely on a BI Attorney.
• Bills Must be submitted within 30 days from the date the first treatment is Rendered
• Ensure patient schedules an appointment for EMC as soon as possible.

2023 Best Practices and Protocols
• A properly completed Disclosure and Acknowledgment Form must be submitted in regard to the first services
rendered.
• All bills must be submitted on properly completed CMS 1500 forms. Be sure to include all required
information.
• If the wronginsurance company is billed the bills must be resubmittedto the proper insurance company
within 35 days of learning of the mistake and provide proof of mailing bills to first insurance company.
• You should remove any reference of referring attorneysfrom all intake forms.
• Make sure all your Professional, City and OccupationalLicenses are up to date.
• Make sure your Corporationis up to date and active as well.
• Keep Proof of Mail for 5 Years - Mail Log.
• Assist patients in attending their E.U.O.’s and I.M.E.’s. and rescheduling or continuing them.
• Make sure all letter of protectionaresigned before providing final reportsto the PI attorney.

Reasons for “Deny, Delay, Don’t Pay”
What Was Once Old News Will Be Back In Practice.
23
• Hyper technicaldefectsin CMS1500form
• EUO no shows.Insurancecompanieswill schedulethem
in mass
• IME CutoffsandIME no shows
• FraudInvestigationof pendingcoverageinvestigations
will be common delays
• MaterialMisrepresentationallegationswill be common
• No HouseholdCoverageor materialmisrepresentation
• Overlybroad and intrusive6(b)requests

The Time Is Now
ScheduleYour Next PIP Audit Before It’s Too Late!

Thank You for
Attending!
833-MIKE-247
www.fischettilawgroup.com
25
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