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Massage Today
June, 2013, Vol. 13, Issue 06

Judge Lifts Stay of Florida PIP Injunction

By Kathryn Feather, Senior Associate Editor

Circuit Court Judge Terry P. Lewis lifted an automatic stay of a temporary injunction against the Florida Personal Injury Protection law, putting a halt to the portion of the law that requires a finding of an emergency medical condition (EMC) as a prerequisite for payment of full PIP benefits and that prohibits the service of massage therapy and acupuncture treatments, no matter who provides it, and payment for services provided by massage therapists, acupuncturists and chiropractors.

According to Massage Today columnist and insurance expert, Vivian Madison-Mahoney, the injunction means massage therapists can now return to accepting auto cases and billing PIP for their services as long as the injunction is in place. However, Madison-Mahoney warns that all of the pre-2012 PIP rules remain in place.

"Will we have more battles? Yes, Florida Legislators are in the process of doing away with no-fault altogether to replace it with bodily injury (BI) because they are so upset that Judge Lewis issued the injunction in March," said Madison-Mahoney. "Yes, the State has already filed another motion with the District Court of Appeals, which has been legally responded to by attorneys Luke Lirot and Adam Levine. And it's back to work again until we find out how the appeals court rules."

"As it stands now, we are in the enviable position of fighting for Florida's citizens while legislators and the Governor are fighting for the insurance companies. As consumers, Luke and I are thankful for the few people like Vivian (and Kevin Johnson at Advanced Diagnostic Imaging) who have taken a stand and fought for all our rights. We are amazed at the general malaise and apathy that appears to overwhelm all Floridians - we cannot figure out how anyone could find it a good deal when the government requires that you purchase $10,000 in coverage from an insurance company and then allow that same insurance company to only provide $2,500 in benefits - seemingly at their own discretion," said Attorney Adam Levine.

florida - Copyright – Stock Photo / Register Mark 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 automobile personal injury insurance. The Florida PIP Defense Fund, a group assembled specifically to fight this bill and consisting of attorneys Luke Lirot, Adam Levine, the United Practitioners Organization, Inc. and Advanced Diagnostic Group, 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 Lirot and 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 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? It 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 law suit 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, "Florida PIP Update" from the March 2013 issue and "Temporary Injunction Granted in Florida PIP Case" from the May 2013 issue. For the latest information or to join the fight, visit www.flpipdefensefund.com. Massage Today will continue to monitor this lawsuit as it makes its way through the legal process.

 

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