Florida Personal Injury Magazine • Jan-Mar 2024

ATTORNEY FEE DEFERRAL STRATEGIES FOR TAX PLANNING

SUCCEEDING UNDER TORT REFORM PART2: AN ANALYSIS OF LOPS

THE

14

DAY TREATMENT RULE AND HOW TO HANDLE IT

BUILDING A STRONG PI CASE THROUGH DOCUMENTATION

NAVIGATING I.T. ROADMAPPING IN 2024 RECENT 4TH DCA DECISION: A WINNER FOR MEDICAL PROVIDERS

WHICH AHCA LICENSE DO I NEED FOR MY PRACTICE?

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From the Editor

WELCOME TO THE PERSONAL INJURY MAGAZINETM !

And welcome, 2024!

And while our industry continues to face uncertainties about the effects of the Tort Reform enacted in 2023, it is now more important than ever to find ways to learn, adapt and power through to continue serving our communities and grow our businesses. Thanks to the partners that support this publication, I trust you will find valuable information in each of the articles we’ve selected for this issue. I encourage you to reach out to them, take advantage of their knowledge and expertise, and leverage from those relationships that will help and support you in reaching your goals.

We are also working hard to bring the Personal Injury Summit™ to Central Florida (for the first time!) and to come back to South Florida (our third time!) in 2024. As usual, we will have a wonderful selection of expert speakers on topics relevant to our industry, and lots of opportunities for networking and making fruitful connections between legal and medical professionals in an exclusive and professional environment. Since we’ve gotten very positive feedback from both guests and sponsors about our one-day, one-room format, there is a limited number of tickets and vendor tables available for sale. Make sure to check out our website for more information to reserve your spot before they run out at www.PiSummitFL.com. I hope to see you all there!

Sincerely,

Angely C. Maria EDITOR IN CHIEF envelope-square editorial@floridapimag.com

ATTORNEY

RECENT 4TH DCA DECISION: A WINNER FOR MEDICAL PROVIDERS

WHICH AHCA LICENSE DO I NEED FOR MY PRACTICE?

THE 14 DAY TREATMENT RULE AND HOW TO HANDLE IT

BUILDING A STRONG PI CASE THROUGH DOCUMENTATION

NAVIGATING I.T. ROADMAPPING IN

SUCCEEDING UNDER TORT REFORM PART 2: AN ANALYSIS OF

By Matthew Shiebler, CPA

Attorney fee deferral strategies involve delaying the receipt of fees to a future date, often for tax planning reasons. There are several reasons a law firm, or solo practitioner may want to take advantage of these strategies. Here are a few common strategies:

1. Structured Attorney fees: Attorneys can structure their fees using period payments, like structured settlement annuities, using a structured settlement advisor.

2. Qualified Settlement Funds (QSFs): Attorneys can use QSFs to defer the recognition of income. Instead of receiving the settlement directly from a defendant, the funds are placed in a QSF, and the attorney only recognizes income when funds are distributed.

3. Non-Qualified Assignment: Attorneys may use non-qualified assignments, such as a non-fixed annuity, to transfer their fee to a third party in exchange for periodic payments.

Tax Guidance for Structured Attorney Fees

Much like a structured settlement for injured plaintiffs, tax treatment hinges on avoiding constructive receipt. In Childs v. Commissioner, 103 T.C. 634 (1994), aff’d, 89 F. 3d 856 (Table)(11th Cir. 1996), the Tax Court ruled that because the attorney’s fees were transferred from the defendant directly to the assignment company, the attorney did not have constructive receipt of the fees; therefore, the fees did not yet count as taxable income.

The use of these deferral strategies is not for everyone. A firm or attorney that’s in growth mode may need their fees right away to support expansion costs. While in growth mode, a firm is always looking for needed capital to continue its marketing costs, on top of funding existing cases. If this is your firm, then perhaps these strategies might not be the best right now, unless of course you have a huge settlement come in that you know you can allow to cash flow over time.

A mature firm or attorney closer to retirement may be interested in creating a long-term revenue stream to support them in their future years. In my opinion, aside from large settlements that allow for cash flow over time, this is where these deferral strategies make the most sense. A mature firm (or solo practitioner) may not need as much in cash flow today to run their firm and if retirement savings wasn’t always on the agenda, deferring your current wins to long term annuities could help retirement be achievable at an earlier age.

It should be noted that the ability to defer fees must be included in the settlement agreement. and the above noted deferral strategies should be discussed with your tax advisor and a reputable structured settlement agent. The information provided here is for general informational purposes only and should not be construed as tax advice. It is not intended to be a substitute for professional tax advice. Tax laws are always subject to change and individual circumstances may vary. Consult with a licensed tax professional for advice tailored to your specific situation. ■

ATTORNEY FEE DEFERRAL STRATEGIES FOR TAX PLANNING

BUILDING A STRONG PI CASE THROUGH DOCUMENTATION

By Michael Mills, Esq.

To be able to represent your client properly and aggressively to the fullest, the importance of prompt and comprehensive documentation cannot be overstated. This article gives a few key pointers on the type of documentation that is required to have a robust personal injury case.

For the Plaintiff, seeking immediate medical attention is paramount after a motor vehicle accident. However, timely medical care is no use if it is not properly documented. The documentation not only ensures coverage and the well-being of the individuals involved but also establishes a crucial foundation for documenting injuries, that can then be used to build the value of the plaintiff’s case. Early intervention allows for accurate diagnosis and treatment, setting the stage for the points you will want to harp on when either negotiating the case with the adjuster or things that you will want to draw the jury’s attention to in trial.

Accurate documentation of injuries creates a clear link we need between the accident and the resulting physical harm. These records become instrumental in establishing the extent of injuries, their connection to the incident, and the necessary course of medical treatment. Additionally, these records serve as the ammunition your attorneys use when doing battle with the insurance company to obtain just compensation for the injuries incurred as a result of the subject accident.

As you know, motor vehicle accidents can result in a wide range of injuries, from visible bruises and cuts to less apparent internal trauma. It’s imperative that the medical provider fully evaluate your client and properly document all injuries to ensure that nothing is overlooked. Photographs provide a visual record of the immediate aftermath and can then be used either as part of the demand package or blown up to be used as exhibits in trial to show the jury the extent of the damage that the accident caused. Make sure to ask your clients to take pictures of visible injuries, bruises, cuts, and any physical damage sustained during the accident.

Finding medical providers that understand the importance of obtaining clear and concise information

from your client regarding their injury and being able to then reflect that information accurately in medical documents is a game changer and goes a long way to strengthening the overall documentation of the case. The progress reports created during appointments provide a timeline of healing and contribute to the overall strength of the injury claim. If the provider fails to sufficiently document injuries and progress, or lack thereof, it can have severe legal consequences. Incomplete or inaccurate records may compromise the credibility of the injury claim, potentially impacting the outcome of legal proceedings.

Don’t be afraid to contact your client and have a direct and open conversation with them regarding how they are feeling and any progress that has been made with their injuries. Often, they may overlook things that they may not realize is a result of the accident and can be beneficial to their claim. Aside from medical records, sending a preservation letter (Spoliation Letter) to the insurance company or the at fault party is a must! This ensures that any information they may have that could benefit your case is preserved, if and when litigation ensues.

In conclusion, in the aftermath of a motor vehicle accident, obtaining detailed documentation of injuries is not just recommended, it’s required. From immediate medical care to future legal proceedings, proper documentation forms the bedrock of a successful personal injury case. All parties involved should prioritize this process, understanding that it is the best way to secure the intended outcome. ■

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RECENT 4TH DCA DECISION: A WINNER FOR MEDICAL PROVIDERS

By Christopher M. Tuccitto, Esq.

A recent decision by Florida’s Fourth District Court of Appeal (4th DCA) is a winner for medical providers who have had services denied by a Personal Injury Protection (PIP) insurer because the code billed does not have an established reimbursement amount under Medicare or Florida Workers’ Compensation. The case was a consolidated appeal requesting reversal of the trial court’s order in favor of MD Now Medical Centers, Inc. which required insurers to reimburse MD Now for billed urgent care center facility fees under Code S9088. (See Safeco Ins. Co. v. MD Now Med. Ctrs., Inc., Nos. 4D22-846, 4D22-847, 4D22-1486, 2023 Fla. App. LEXIS 5401, at *1 (4th DCA Aug. 2, 2023) )

In each of three cases, the insureds were injured in automobile accidents and received treatment at one of MD Now’s urgent care centers. Each of the insureds assigned their PIP benefits to MD Now. MD Now submitted medical bills to the insurers, who paid all charges except for the urgent care facility fee under Code S9088. MD Now uses this code to bill for services provided in an urgent care center.

The insurers denied payment of Code S9088, claiming it wasn’t a covered expense pursuant to Section 627.736(5)(a)(1)(f), Florida Statutes because it is not reimbursable under either the Medicare or Florida’s Workers’ Compensation Fee Schedules. The insurers asserted that

(1) neither Medicare nor Workers’ Compensation have a set fee for Code S9088, and (2) Workers’ Compensation reimburses urgent care centers using the non-facility Maximum Reimbursable Amount (“MRA”).

MD Now argued that Code S9088 was reimbursable under Workers’ Compensation and the Florida Workers’ Compensation Health Care Provider Reimbursement Manual. MD Now contended that codes that do not have a set MRA require insurers to have an established methodology for determining the reimbursement amount. MD Now submitted evidence that Workers’ Compensation insurers consistently reimbursed for Code S9088 in the three years prior to the filing of this lawsuit and that Workers’ Compensation insurers have repeatedly used Code S9088 since 2002 when the code first went into effect.

The 4th DCA looked to the language of the PIP statute, specifically Section 627.736(5)(a)(1)(f), Florida Statutes, which states in pertinent part: “…if such services, supplies, or care is not reimbursable under Medicare Part B, as provided in this subparagraph, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such

services, supplies or care is provided. Services, supplies or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.”

The question presented to the 4th DCA was whether, under Section 627.736(5)(a)(1)(f), Florida Statutes, Code S9088 is a type of service which is reimbursable under Workers’ Compensation such that a PIP insurer is required to pay those charges.

The 4th DCA affirmed the lower courts’ decisions, holding that reimbursement of Code S9088 is permitted “under a plain reading of the statutes, regulations and applicable reference guide provision.” In their decision, the Court explained that, in conjunction with Section 440.13, Florida Statutes, the Florida Administrative Code Rule 69L-7.020 adopts the Florida Workers’ Compensation Health Care Provider Reimbursement Manual. The Manual stipulates that if a code does not have an established Maximum Reimbursable Amount (“MRA”), the insurer must have a methodology for determining reimbursement for that code that is done by comparing the billed code(s) with clinically similar codes found in the Current Procedural Terminology (CPT) Manual or the Healthcare Common Procedure Coding System (HCPCS) Manual. This means that codes like Code S9088, which do not have established MRA’s, still must be reimbursed by Florida PIP insurers.

The 4th DCA’s decision will allow medical providers to be compensated if they were previously denied reimbursement for Code S9088 and for other codes that were denied for the same reason. Currently, the 4th DCA is the only Florida DCA to have ruled on this issue, which means that it applies to the entire State of Florida, unless and until another DCA issues a conflicting opinion. ■

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NAVIGATING I.T. ROADMAPPING IN 2024

By Jairo Avila

How do I ensure my IT infrastructure is not only up to date but also future-proof?

As a partner at a managed service provider, I hear this question and others like it often. It makes sense that leaders in the personal injury industry are looking for answers. So let’s steer you in the right direction when it comes to IT, AI and more.

What is IT roadmapping?

At its core, IT roadmapping is a strategic plan that guides you through your IT journey. It communicates your organization’s technology needs and makes sure the solutions are aligned with your business goals.

Typically, IT roadmapping begins with a thorough assessment of your current IT infrastructure, identifying strengths and weaknesses. The roadmap then outlines the necessary steps and investments to achieve those objectives.

Roadmapping is dynamic, not something you set and forget. It should be revisited periodically to adapt to changing needs and technologies. For example, you shouldn’t simply replace hardware for hardware when something breaks or ages out. You have to ask, “Are we doing what we’ve done before? Is our infrastructure the same as it has been in the past?’ When you make an investment, you want to future-proof it if possible. That’s the IT roadmap’s role.

How can technology help us to prep for and deal with unforeseen circumstances?

There are two approaches to fortifying your PI practice: You can adopt the cloud as your ideal infrastructure. For instance, using Azure, allows you to upgrade servers, capacity, disk storage and replication to make backups easy. Or, if you’re not in the cloud, your organization should reinforce existing infrastructure.

Even with a robust IT roadmap, you can only project so much, and sometimes budget constraints limit projected actions. The bottom line? Cloud-based backups and disaster recovery plans can be lifesavers in case of data loss if they fit your budget.

AI is a hot tech topic: Should AI write legal briefs? Should lawyers use AI?

AI should be seen as a tool, not a replacement, for unique and original content. We see AI gaining traction in a lot of industries. But, if someone in the legal field leverages or uses an AI, they have to state that use.

You can use ChatGPT to create content, but it may not be fresh, well-researched or factual. We suggest using AI as an assistant or a helper, but if proper vetting of information or data control is not done, you could

put yourself in a precarious situation. Never assume the tool’s output is 100 percent accurate.

What else should we know about IT roadmapping?

For PI professionals delving into IT roadmapping, the biggest gap is often addressing the issue of people being a weak link from a cybersecurity standpoint. Cybersecurity awareness training must be part of your IT planning. Keeping your staff aware of and trained on the latest threats is critical.

In fact, the most leveraged of these threats lurks in something your team members use every day: email. BEC, or business email compromise, is a constant

Roadmapping is dynamic, not something you set and forget. It should be revisited periodically to adapt to changing needs and technologies.

problem and there’s only so much technology can do to prevent social engineering scams like phishing.

Your IT Takeaway

IT roadmapping is not just about keeping up; it's about thriving no matter where technology is headed. At Internos, we know that with the right strategy and foresight, PI professionals can navigate an interconnected world with confidence, ensuring they are well-prepared for whatever lies ahead. ■

WHICH AHCA LICENSE DO I NEED FOR MY PRACTICE?

By Matt Snyder

When navigating the many licenses that are regulated by AHCA, it can be overwhelming for a medical provider. These licenses can be confusing, cumbersome, and sometimes feel impossible to obtain. One of the most common questions from our providers is, “Which AHCA License do I need to operate my practice?” This really depends on the ownership of the practice.

AHCA Healthcare Clinic Exemption

Obtaining a Healthcare Clinic Exemption is a straightforward process. It is very important to fill these applications out as accurately as possible and disclosing all procedures, services, payors, and exemption qualifications is crucial. HCC Exemptions can be obtained by licensed practitioners covered by section 627.419 [allopaths, osteopaths, chiropractors, podiatrists, optometrists, or dentists only]. Direct family members can also be part owner of a practice, but proof of being a direct family member such as a wife, sibling or child will need additional documented proof. Copy of the applicable medical license will be required as well.

AHCA Healthcare Clinic

A Healthcare Clinic License requires more documentation for application approval. The significant difference between a Healthcare Clinic and the Exemption is that a Healthcare Clinic can be owned by a non-physician. These applications must disclose all services being rendered in the clinic, all professionals practicing in the clinic and all staff members. All of these employees or contracted professionals must pass a level 2 background screening in order to have any interaction with patients or patient information. Additionally, in order to have an approved Healthcare Clinic you must have a contracted Medical Director or Clinic Director. These contracts must meet certain requirements in order to

be approved by AHCA. Obtaining a Healthcare Clinic license with AHCA can be time consuming and requires tremendous attention to detail. We recommend hiring an experienced consultant or dedicating a trusted employee to this process.

AHCA Home Medical Equipment

A Home Medical Equipment license allows you to bill PIP for certain DME items. Some of these items include portable traction units, Aqua Therapy Units and many other therapy products. Billing some of these items to PIP without an HME license could be considered “unlicensed activity” by AHCA. The common items that are not included as home medical equipment are orthopedic bracing and TENS units. In 2020, the State of Florida changed the Statute requiring physicians to obtain the HME license in order to dispense TENS units to patients. Unfortunately, 3 years later, PIP carriers are still denying TENS based on the outdated Statute. JMS Med Consulting has a copy of this new Statute, if anyone would like a copy. The cost of obtaining an HME license is minimal, we recommend going through with the process to avoid any delaying of claim payments on you DME products. PIP adjusters commonly check the online database of Home Medical Equipment providers to verify valid HME licenses before claim payments. ■

Matt Snyder PRESIDENT, JMS MED SUPPLY

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SUCCEEDING UNDER TORT REFORM

Part 2 - An analysis of LOPs

By Aaron Proulx, Esq.

This is the second of several articles on the road to success under Florida Tort Reform’s (FTR) Section 768.0427. That road is paved by a three-tiered response to the statute in which medical providers replace pre-FTR newpatient forms and practices, their attorneys prevail on motions for protective order (MPOs), and PI firms prevail on motions in limine (MILs). This second article will provide a deeper analysis of the statutory definition of “letter of protection” (LOP) and its impact on discovery and admissibility issues.

Subsection (1)(d) defines LOP as “a promise of payment... from any judgment or settlement.” This definition may have substantial impact on three different areas – subsection (2)(b)(2), subsection (2)(b)(4), and Section 3.

Subsection (2)(b)(2) states that “if the claimant has health care coverage but obtains treatment under a letter of protection or otherwise does not submit charges for any health care provider's medical treatment or services to health care coverage . . . .” the defense can present evidence of the amount the insurer “would pay” had the patient used insurance. The concern, here, is that the insurance reimbursement amount is likely to have an “anchoring” effect that drags a jury award down from the charged amount. Notably, this subsection contains an “or” that may allow the defense to present the evidence even without an LOP.

Subsection (2)(b)(4) states that “if the claimant obtains medical treatment or services under a letter of protection and the health care provider subsequently transfers the right to receive payment under the letter of protection to a third party,” the defense can present the purchase price to the jury. Here, the concern is that the purchase price is likely to have an “anchoring” effect that drags a jury award down from the charged amount.

Section 3 states that “as a condition precedent to asserting any claim for medical expenses for treatment rendered under a letter of protection, the claimant must disclose” five different categories of information. One category of information, contained in subsection (3)(e), is “the financial relationship between a law

firm and a medical provider, including the number of referrals, frequency, and financial benefit obtained.” This is the Boecher impeachment information that Worley prohibited the defense from obtaining. Thus, the concern is that FTR abrogates Worley

But because the existence of an LOP is a condition precedent to the subsection (2)(b)(2) insurance reimbursement, the subsection (2)(b)(4) purchase price, and the Section 3 Boecher impeachment information, medical providers and PI firms have a strong plain language argument that the defense is not entitled to this information because there is no LOP. This argument requires medical providers to:

1. Create new financial agreements that do not meet the statutory definition of LOP. This requires much more than simply deleting any express promise to pay from litigation proceeds;

2. Revise new-patient, billing, and any other forms to exclude terms like “letter of protection,” “LOP,” and “litigation lien;”

3. Never write notes that refer to LOPs or “LOP patients;”

4. Never list the PI firm as a payor, insurer, or guarantor;

5. Enforce financial agreements and maintain a record;

6. In corporate representative and doctor depositions, be wary of the multiple and evolving tricks the defense will employ to blur the distinction between LOPs and the new financial agreement.

These steps should constrain courts to apply the plain language of the statute and determine that no LOP exists. If so, medical providers and PI firms will prevail on MPOs and MILs under subsection (2)(b)(2), subsection (2)(b)(4), and Section 3. ■

THE 14 DAY TREATMENT RULE AND HOW TO HANDLE IT

By George A. David, Esq

I have noticed recently an alarming high rate of PIP claims being denied by various insurance companies based on a patient not receiving treatment within 14 days of the date of the accident. It seems to me that insurance companies have a conference as to what their latest maneuver will be to deny claims and then all of a sudden you see different insurance companies denying claims for the same reason. So, let me remind you of the 14-day rule and how it works.

FS §627.736(1)(a) requires a patient to receive treatment, medical care or some type of initial services within 14 days of the accident as shown below:

(1) REQUIRED BENEFITS.—An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:

(a) Medical benefits.—Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices and medically necessary ambulance, hospital, and nursing services if the individual receives initial services and care pursuant to subparagraph 1. within 14 days after the motor vehicle accident. (Emphasis added).

The 14-day limitation has been challenged and courts have found the provision to be constitutional so we must live with the 14-day limitation. I find that the 14-day rule is a favorite for insurance companies to deny medical treatment as it is an easy rule for them to follow. Below is a list of “treatment” options by a patient that will satisfy the 14-day rule:

1. EMS treatment at the scene of the accident;

2. Transportation by an ambulance type service to a hospital;

3. Treatment from any recognizable physician or nurse under the PIP statute;

4. Radiological testing of any sort recognizable under the PIP statute;

5. Any other treatment payable under the PIP statute.

It makes no difference as to whether a medical provider submits a PIP claim for any medical treatment within 14 days, all that’s needed is that the patient treats within 14 days for accident-related injuries. As long as there is treatment recognizable under the PIP statute within 14 days, a PIP insurance carrier cannot properly deny a claim under FS §627.736(1)(a). Lazy or incompetent adjusters will not catch treatment that occurs within 14 days. I find that once an insurance company denies under the 14-day rule, they are stubborn to relinquish that denial.

So, how can medical providers work with the 14-day rule? Most medical providers will obtain a history of treatment that will include treatment within the first 14 days. It is important to also ask for EMS treatment at the scene, look at the police report to see if there was EMS treatment and see if there was transportation to a hospital. Patients can forget about or do not understand that EMS treatment at the scene constitutes treatment under FS §627.736(1)(a). Patients can also go to their family doctor first before seeing automobile accident healthcare specialists and forget about telling their specialists about those medical appointments. Medical providers should provide a comprehensive questioning to patients for a full history of their medical treatment. This practice not only helps in establishing medical treatment within 14 days but also helps in providing a medical provider with a full knowledge of a patient’s past medical treatment. ■

George A. David, Esq.

George A. David P.A.

is your go-to law firm in Florida serving

Medical providers in presenting PIP claims

Personal injury attorneys who are not familiar with the intricacies of PIP law

We are the law firm that is not afraid of difficult cases. We handle all cases, including the more difficult cases such as where insurance companies deny claims because:

◦ $10,000.00 policy limits are exhausted

◦ Material misrepresentation

◦ Fraud

◦ Invalid reductions in medical bills

◦ Failure to appear to examinations (EUOs) under oath or “independent” medical examinations (IMEs)

We work with medical providers in EUO and IME requests from insurance companies. We also will co-counsel with personal injury attorneys in making a special appearance in scheduling and appearing to EUOs and IMEs. We are available to answer any PIP questions. Just call or email us.

George David represented insurance companies from 1991 up until 2001. Since 2001 George David has been representing medical providers in PIP suits. We know all the insurance companies’ tricks. We handle cases throughout Florida and have suits filed in the Tampa, Tallahassee and South Florida areas. Our main office is in Coral Gables.

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