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Massage Today
May, 2013, Vol. 13, Issue 05

Temporary Injunction Granted in FL PIP Case

By Kathryn Feather, Senior Associate Editor

Circuit Judge Terry P. Lewis issued a partial injunction against the Florida Personal Injury Protection law, putting a halt - at least temporarily - to the portion of the law that requires a finding of an emergency medical condition as a prerequisite for payment of PIP benefits and that prohibits payment for services provided by massage therapists, acupuncturists and chiropractors.

The state's Office of Insurance Regulation quickly filed an appeal, which means claims cannot be filed and payments cannot be received on PIP cases until the next ruling is rendered.

Attorney's for the Florida PIP Defense Fund immediately filed an emergency motion to vacate the stay and that hearing was held in Judge Lewis' courtroom on Monday, April 1st.

As of press time, no decision had yet been made by Judge Lewis. The case could ultimately end up before the state's Supreme Court.

Current Status

Attorney Adam Levine commented on the April 1st hearing in front of Judge Lewis, saying that, "Judge Lewis provided us with a very fair hearing which lasted more than twice as long as it was originally scheduled for."

Levine and Lirot reviewed the law with Judge Lewis and presented him with 63 affidavits. According to Levine, under cross examination, the state's witness, Sandra Starnes of the Florida Office of Insurance Regulation, admitted that the "statistics" upon which the 2012 PIP Act were based, were provided entirely by the insurance industry and no oversight or independent verification was ever undertaken by the OIR.

florida - Copyright – Stock Photo / Register Mark According to Levine, "we reviewed highlights of the facts supporting our position from exemplary experts from these affidavits and Dr. Erick Frank, DC, provided live testimony, doing an excellent job highlighting the multiple problems and unfair limitations caused by the challenged legislation's benefit limitation of $2,500 for PIP coverage, absent the undefined 'emergency medical condition' requirement, the nebulous characteristics of which Dr. Frank articulated perfectly."

Background

A group of Florida massage therapists were hoping to close out 2012 with some positive momentum in their fight against HB119, which prohibits the state's massage therapists and acupuncturists from billing personal injury insurance.

The Florida PIP Defense Fund, a group assembled specifically to fight this bill, learned in the waning days of 2012 that the federal court canceled its hearing scheduled for December 27, 2012, and issued an order denying its motion for a preliminary injunction.

Attorney's Luke Lirot and Adam Levine then filed a motion to reconsider and they are also filed a response to defendant Kevin McCarty's request for dismissal on the day the case was due to be heard in Federal Court.

Lirot and Levine explained that, "we believed that the provisions of this act violated the rights of acupuncturists, licensed massage therapists and chiropractors in Florida. Specifically, we believed that these health care provider's rights, which are protected to due process and equal protection, were violated when Florida determined that in order to prevent fraud, all licensed massage therapists and acupuncturists should no longer be permitted to provide care to those injured as a result of a motor vehicle collision."

According to an earlier release from the Florida PIP Defense Fund, Constitutional attorney Luke Lirot filed a complaint for declaratory and injunctive relief against Kevin N. McCarty in his official capacity as Commissioner of the Florida Office of Insurance Regulation.

The complaint states that "the challenged legislation is invalid on a vast number of bases, generally summarized:

  • It violates the 'single subject rule.'
  • It contains a variety of restrictions that are unnecessary and unreasonable.
  • It violates the equal protection rights of healthcare providers.
  • It denies due process of law.
  • It is based on unsupported statistical assumptions, not the product of proper research methodology.
  • It unduly limits the rights of medical professionals and consumers.
  • It departs from the rationale originally relied on to support the 'No-Fault' regulations as a 'sufficient alternative' to a party having access to the courts, and now results in a denial of access to the courts.
  • It violates the separation of powers doctrine by legislatively imposing a statute that determines the amount of 'damages' an injured party may obtain."

"In the end, Luke and I believe it was clear to the Court that we are representing all Floridians and that the state OIR is only concerned with helping PIP insurance carriers," said Levine.

"One wonders what the PIP insurer profits are and whether it was ever necessary for the state to approve the rate increases of the past, based on data supplied by the PIP insurers themselves. We remain cautiously optimistic regarding the outcome of this hearing," continued Levine.

In an article from the September 2012 issue of Massage Today, "Florida Legislative Update," Lirot said, "While Insurance companies might be able to pick and choose medical providers, treatments and so forth, the State cannot. If, as the Governor alleges, the high costs to insurers is due to fraud in the PIP system, why then eliminate an entire field of medical providers? Why not go specifically to the fraudulent activity and attack the ones perpetrating the fraud?"

Lirot continuIt is totally unreasonable, unjustifiable, arbitrary and overreaching to eliminate a whole profession of medical providers. Was it just because massage therapists and acupuncturists were the easiest to target?"

For additional information about the Florida Defense Fund or a history of this legislation, see "Legislative Changes in Several States" from the April 2012 issue, "Lawsuit Filed Against FL PIP Ruling" from the December 2012 issue or visit www.flpipdefensefund.com.

Massage Today will continue to monitor this lawsuit as it makes its way through the legal process. For the latest updates, visit www.massagetoday.com.

 

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