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Florida Injury Law FAQs »

Florida Injury Law For The Disabled And Their Physicians

  1. So, if a disabled person is in an accident in Florida, what should the treating physician do?An injured recipient of Medicare who is in an accident, particularly a motor vehicle accident, may have only a limited amount of PIP benefits, so in writing, a Medicare recipient should have already advised his physician of or that PIP benefits are exhausted.  At this time the physician should bill Medicare for their services after PIP benefits run out; otherwise, you may be forced into litigation over your bills.
  2. Does Florida law define me as a Medicare recipient?Florida Statute §456.056 defines “Beneficiary” as a “beneficiary of health insurance under Title XVIII of the federal Social Security Act.” (42 U.S.C. § 1395 at seq., Health Insurance for Aged and Disabled).
  3. If a Florida Medicare recipient becomes an injured party, and is a Medicare Beneficiary, who is liable for damages including the amounts that treating physicians charged under contract/letters of protection?The patient is liable to his physicians for bills he incurs even though the person who caused you injury may be liable to him to compensate him for those damages.  If a patient assigns his claim in writing to a physician, that physician now has  claim for the bills the patient incurred to the physician on account of someone else’s negligence but this recovery is a limited one.
    • Pursuant to Florida Statute §465.056 treating physicians are limited to charges authorized by Medicare as found in 42 U.S.C § 1395 et seq., which provides that physicians may charge only a limited amount above the Medicare-Approved Amount when the physician does not accept assignment of the claim.  See 42 U.S.C. § 1395w-4 et seq., 42 C.F.R. §§ 424.56 and 414.48.
    • Medicare set the limiting charges for years subsequent to 1993 at 115% of the Medicare-Approved amount for unassigned claims.  See 42 C.F.R §414.20 and 42 C.F.R. §414.48 (if the physician accepts assignment of the claim, the physician is limited to only 100 percent of the Medicare-Approved Amount.)
    • Moreover pursuant to 42 U.S.C.A § 1395w-4 (g) no Medicare Beneficiary is liable for payments of any amounts billed for service in excess of the limiting charge.
    • Physicians who are enrolled with Medicare are bound by agreements not to charge Medicare Beneficiaries individually for services that the individual could have had covered under Medicare. See 42 U.S.C. §1395cc. So, upon injury by another party, a Medicare recipient should notify his/her physician immediately that he/she is a Medicare recipient so that neither the physician nor the patient is stuck holding the bag for medical services or expecting the patient or the at-fault party to make payments that Medicare would otherwise make.
  4. So, how would this work out in an accident case involving A Medicare beneficiary?For example, in an accident case, it is not unusual for physicians to bill the injured patient in excess of Medicare paid services, because there is a financial incentive to do so. The American Orthopedic Institute billed $35,417.47 over the limiting charges allowed by Medicare for the arthroscopic surgery for knee meniscus tear and related services.  Dr.  Smith billed $779.44 over the limiting charges allowed by Medicare for a single office visit and Calcium Chiropractic and Rehab billed $2481.28 over the limiting charges allowed by Medicare for chiropractic care and services.  Billing amounts for these physicians exceed $46,018.35, which exceeds the Medicare-Approved amounts by at the least $40,000.00.  The actual Medicare-Approved amounts equate to only about $7,440.00 for these services.  Wow!
  5. How do courts limit these recoveries from physicians in Florida?The Second District Court of Appeal addressed the admissibility of charges exceeding Medicare amounts in Cooperative Leasing Inc. and Domer v. Johnson, 872 So.2d 956, (Flat 2d DCA 2004).  The facts in Cooperative were that a motorist was injured in an automobile accident and the trial court allowed into evidence bills for all medical expenses.  The bills were in excess of benefits paid by Medicare.  The Second DCA ruled that the excessive billing was inadmissible because the plaintiff was not liable for the excessive billing pursuant to Title 42 U.S.C. §1395 and precedent.  In citing the U.S.C., the Second District determined that the plaintiff’s medical bills were paid by Medicare at the Medicare-approved amounts and that the physician could not recover from the plaintiff personally.  The Second District goes on to provide precedent that the plaintiff is entitled to compensation for reasonably valued medical care and found that the Medicare amounts paid to the physicians were customary and reasonable.  This is also the basis for approved amounts under 42 U.S.C. §1395w-4.  Therefore, any amounts in excess of the Medicare-approved amounts would allow the plaintiff to receive a windfall by recovering “phantom damages.”  Id, at 959.  In its ruling, the Second District goes on to provide that the difference between what the physicians charged and the Medicare-Approved Amounts are not a collateral source that would be deducted as a set-off post verdict.  Id. At 960.Moreover, all billing of the above physicians that do not meet the requirements for contracting with a Medicare Beneficiary and/or that are in excess of the Medicare-Approved Amounts are null, void, and of no merit as a matter of law pursuant to Florida Statute §456.056  It is of the utmost importance, therefore that if a Medicare recipient is involved in any accident that he let his treating physician know he is disabled and on Medicare, so that he/she does not create any outstanding bills or bad-will by failing to tell you the physician up front to bill Medicare.
  6. When does a claimant become eligible for Medicaid or Medicare if he or she is disabled?In Florida, an SSDI or SSI awardee/recipient will first be entitled to Medicaid benefits for the first two years of disability; thereafter, he or she will be covered by Medicare.  For example, John Q. Public was born on 09/11/53 and files his disability claim, (SSDI or SSI) on February 1, 2007.  He alleges he was disabled when he had back surgery on February 1, 2006.  He treats with Dr. Jones throughout this entire time.  On September 19, 2009 Judge Hemshearth renders an opinion that Mr. Public was disabled as alleged on February 1, 2006.  Mr. Public’s bills are reimbursable to Mr. Public through Medicaid, a State run program, between February 1, 2006 and February 1, 2008.  Thereafter, they are payable or reimbursable through Medicaid, a federally run program.  The only exception to the running of this rule would be if Mr. Public reached his full retirement age between February 1, 2006 and  February 1, 2008, whereupon he would qualify for Medicare,  (usually age 65-67, depending where in the Baby Boom he is) prior to February 1, 2008.
  7. In Florida, if a person is disabled and a Medicare recipient, can a physician legally charge him or her more than Medicare will allow? 

    No.  Florida Statute §456.056, Treatment of Medicare Beneficiaries, provides in pertinent part of the following:(5) Any attempt by a primary physician or a consulting physician to collect from a Medicare Beneficiary any amount of charges for medical services in excess of those authorized under this Section, other than the unmet deductible and the 20 percent of charges that Medicare does not pay, shall be deemed null, void, and of no merit.

  8. How can a physician go about legally charging more than Medicare will pay?If a physician seeks to have a Medicare Beneficiary held liable as an individual for charges that are in excess of the Medicare-Approved Amounts, the physician must meet the requirements of 42 U.S.C. §1395a that mandates a written contract between the physician and the Medicare Beneficiary must be entered into and signed by both individuals, that the contract set forth the specific services to be provided, that the Medicare Beneficiary will not submit a claim to Medicare, that the Medicare Beneficiary understands he or she will be responsible for payment of services and that Medicare will not reimburse him or her for those services, that the Medicare Beneficiary acknowledges there exists limits under Medicare regulations limiting charges to specific amounts, that the Medicare Beneficiary has the right to services provided by other physicians who would limit their charges to Medicare-Approved Amounts, and that the physician indicate whether or not he or she is a participant in the Medicare program.  If no contracts that meet these requirements exist, then your physician may not collect more then the Medicare allotted amounts.

    In addition to the contractual requirements, the physician must notify Medicare by way of affidavit stating that the physician will not submit a claim under Medicare for services provided to the Medicare Beneficiary for at least two years after executing the contract.  If the physician fails to abide by the regulations and codes under 42 U.S.C. § 1395 et seq, the physician may be subject to sanctions including fines amounting to two to three times the excessive charge, removal from the Medicare program, refunding of any payments made by the beneficiary that are excessive and assessment of $2,000.00 for each instance of excessive billing.

    It is obvious that Medicare does not want Medicare Beneficiaries to be taken advantage of by physicians circumventing the Beneficiaries right to have the charges limited by Medicare.