Florida PIP: Changes in Medicare Fee Schedules Affect Insurance Payments

Since January 1, 2008, insurance companies providing personal injury protection benefits (PIP) have been able to utilize a permission fee schedule to reduce payments to medical providers. The fee schedule is largely based on 200% of the Medicare Part B Participating Physicians Fee Schedule.

The Medicare Fee Schedule is typically updated at least annually. This year, however, there were several anomalies that affected both insurers and medical providers. The fee schedule was not updated in January of 2010. Instead, a retroactive update was issued in May, and applied to all services provided from January 1, 2010 to May 31, 2010. Another retroactive update was passed in June, effective for dates of service June 1, 2010 through November 31, 2010.

This created payment problems for the PIP insurers who based reimbursement on Medicare. Most did not update their payment files quickly, and refused to reprocess prior claims. As a result, many medical providers have not been paid the proper amount on PIP claims. While the individual amounts may be small, they do add up over the course of a claim – and certainly with numerous claims. Medical providers are encouraged to review their PIP payments to ensure that their services were properly compensated.

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Bucs Wide Receiver Charges with DUI Despite Breath Test Under the Legal Limit

As reported at http://www.tampabay.com/news/publicsafety/tampa-bay-buccaneers-receiver-mike-williams-accused-of-dui/1135235, the Buccaneers star wide receiver Mike Williams was recently arrested for DUI. According to the report, he was stopped by police for speeding and weaving in traffic at 2:48 a.m. in Brandon. He apparently failed field sobriety tests and was arrested. He then gave breath samples of of .065 and .061, both under the legal limit of .08. This news has given rise to many questions of how he could be charged with DUI if his breath alcohol content was below the legal limit.

In Florida, there are two ways to prove a DUI. The first is where the driver has a blood or breath alcohol content above the legal limit of .08. This is also known as DUBAL – driving with an unlawful blood/breath alcohol content. The second is driving while under the influence of alcohol or drugs to the extent the person’s normal faculties (vision, balance, reactions) are impaired. Whether someone is impaired is different in each circumstance. One person may be impaired with a lower alcohol level than another.

In impairment cases, the officer’s observations of the driver and the performance on field sobriety exercises are critical. Of course, the field sobriety exercises are simply a means for the officer to collect evidence against the driver for use at trial later. The observations are highly subjective in many cases, and made by an officer that is specifically looking for signs of DUI.

So while the star receiver may have been under the legal limit, he still may be convicted of DUI based on his level of impairment.

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It Can Happen To Anyone

One the of things I have learned over my years as a prosecutor and a criminal defense attorney is that good people often find themselves on the wrong side of the law. Sometimes out of desperation, sometimes out of a momentary lapse in judgment.

A prime example is the case of Captain Scott Sciple, USMC. Capt. Sciple served four tours of duty in Iraq and Afghanistan, earning three Purple Hearts and a Bronze Star. While back in the states recovering from an injury – and awaiting to return for a fifth tour – Capt. Sciple suffered a massive lapse in judgment which led to the death of Pedro Rivera.

Capt. Sciple has been formally charged with DUI Manslaughter in the death of Mr. Rivera. According to a report by the St. Petersburg Times, Capt. Sciple drove his car the wrong way on I-275 and caused a head-on crash with Rivera’s car. Blood tests taken by law enforcement showed a blood alcohol level of .255 – more than three times the legal limit of .08.

While Capt. Sciple has served his country admirably, and most likely had no intention of harming anyone that morning, his actions have led to a horrific and tragic result.

New Law Allows Reinstatement After Permanent License Revocation

Florida Governor Charlie Christ recently approved HB 971, which, in some situations, provides for reinstatement of driving privileges for individuals with permanent revocations due to four or more DUI convictions. The new law is effective October 1, 2010.

Starting October 1, 2010, those whose last conviction (or release from incarceration) for DUI was more then 10 years ago are eligible to apply. (Effective October 1, 2011, the time reduces to 5 years.) A hearing must be held for the Department of Highway Safety and Motor Vehicles to determine whether the qualifications have been satisfied. The conditions include:

• No drug arrest for the past 5 years
• No driving for the past 5 years
• Drug free for the past 5 years
• Completion of DUI school

If all of the qualifications are met and the DHSMV approves the application, the person must be supervised by a DUI program throughout of the entire revocation period. The first year of license reinstatement is for business purpose only driving. Additionally, an ignition interlock device is required on the person’s vehicle for 5 years.

If you have had your license permanently suspended in Florida for DUI convictions, contact us to determine whether you might qualify for reinstatement under the new law.

Stephen Lawler, Esq.
http://www.thelawlerfirm.com

Summer Is Here, And So Are Teen Drivers

The summer is here and with it comes a surge of teenage drivers making there way to beaches and parties. With the increase in teen drivers, it is important to recognize that according to the Florida Department of Highway Safety and Motor Vehicles, teen drivers have the highest rate of accident involvement and fatal crashes. Generally speaking, teens are also the most likely to be distracted by things such as cell phone use or texting while driving. Studies have shown that texting while driving may impair a driver’s reaction time even more than alcohol.

As a driver, you must act to protect your own safety on the roadways. Always wear your seatbelt, and make sure that all of your passengers do as well. If you are traveling with children, make sure they are using the appropriate child restraint device. Not only must you make sure that you are following the rules of the road, but you must pay careful attention to others who may not be.

Unfortunately, even the most diligent drivers can become involved in an accident. If this happens to you, here are some tips:

• Seek medical attention if you have any pain
• Call police or exchange information with the other driver
• Take photographs of the vehicles and scene
• Contact your insurance company as soon as possible
• Keep copies of everything related to the accident

If you have the required insurance under Florida law, your insurance company will pay for your medical bills under Personal Injury Protection. In most cases your vehicle damage will be paid for under your collision coverage, and your insurance company will make a claim against the at-fault driver.

If you have been in a car or motorcycle accident, even a minor crash, you should speak with an experiences attorney to protect your rights. A personal injury attorney can ensure that your insurance benefits are paid properly, that you get the medical treatment you need, and you are fairly compensated by the at fault driver.

Stephen Lawler, Esq.
http://www.thelawlerfirm.com

If You Want To Remain Silent, You Can't Remain Silent!

Almost every American citizen knows that among our many rights are the right to remain silent (Fifth Amendment) and the right to an attorney (Sixth Amendment). In the recent United States Supreme Court case of Berghuis v. Thompkins, 08-1470 (JUNE 1, 2010), the Court held that the right to remain silent must be affirmatively and unequivocally invoked by the suspect. In the Thompkins case, the suspect had been arrested in relation to a homicide. Officers questioned the suspect over a three-hour period during which he was almost completely silent. Toward the end of the three-hour period, the officers asked if he wanted forgiveness for the death, to which he responded “yes.” The Supreme Court by a 5-4 margin held that the police interrogation was permissible and the incriminating statement was admissible evidence.

The Court held that he failed to unambiguously and unequivocally assert his right to remain silent. Apparently, his three hours of silence in response to relentless questioning was insufficient to show his intentions. In other words, he could not just remain silent, but had to affirmatively tell the officers that he wanted to remain silent and did not want to answer their questions.

This is another in a line of recent cases from the Court favoring law enforcement over the rights of the individual suspect. If you are ever in the unfortunate position of being a criminal suspect, remember to tell the officers loud and clear that you invoke your right to remain silent, and that you want your lawyer immediately.

Stephen Lawler, Esq.
http://www.thelawlerfirm.com

Florida Slip And Fall Cases: New Burden Of Proof

Until recently, slip and fall law in Florida was somewhat favorable to injured plaintiffs. In the case of Owens v. Publix Supermarkets, 802 So.2d 315 (2001), the Florida Supreme Court set the previous standard for proving slip and fall accidents involving transitory substances on floors. The rule stated by the Owens Court was that “the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured is not a safe condition and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition.” This effectively eliminated the need for a plaintiff to show that the property owner was aware that the substance was on the floor and failed to clean it up.

This is about to change. Governor Christ recently signed HB 689, which becomes effective July 1, 2010 as Florida Statute 768.0755. The new statute effectively overturns the Owens decision. Now an injured plaintiff will have to prove that something was on the floor that caused the fall, and that the property owner knew or should have known it was there and failed to take the necessary action to clean it up. This is certainly a much higher burden for slip and fall victims.

Although the law becomes effective July 1, 2010, there is some question as to whether it will impact injuries that occurred before the effective date of the law. In most situations, laws may only operate prospectively to affect incidents that occur after the effective date. There are, however, many instances when a law can directly impact cases arising before the law if effective. Certainly defense attorneys hired by the property owners will argue that the new law should be applied to cases filed after July 1, even if the fall was much earlier. These issues require careful analysis of complex areas of the law. If you have been injured in a slip and fall accident, but have not yet filed suit, you should speak with an experienced personal attorney to determine how the new law will affect your case.

Stephen Lawler, Esq.
http://www.thelawlerfirm.com