By Paul A. Herman, Esq., Joel A. Brown, Esq., & Robert A. Friedman, Esq.

April 28, 2022

 

Once again, Consumer Advocate Law Group and Friedman & Brown are proud sponsors of FWA and want to thank the numerous attorneys across the state that allow us to assist in resolving issues involving medical billing and debt collection against their clients (within the scope of a workers’ compensation claim) that involve state of Florida and Federal consumer collection practices acts (and the penalties and attorney’s fees that apply to violations of those statutes).

This direct medical billing by any entity to a claimant is considered consumer debt collection as defined under both the state of Florida Consumer Collection Practices Act, FCCPA FS §559.72, and when it involves registered debt collectors exclusively, the federal or Fair Debt Collection Practices Act or FDCPA 15 U.S.C. §1692 –1692p.  As you may recall, we posted articles of interest in the FWA newsletter of February 18, 2021, and May 19, 2021, regarding the issues of an update on important state and federal cases involving medical debt and how to kill a zombie medical debt in violation of 440.13 respectively. At the time, we were all anticipating a resolution of the Sheridan Healthcare Inc. v Patty Davis case number SC19-1923 and SC19-1936 involving a determination of whether debt collection on behalf of medical providers is considered analogous to reimbursement (and covered by DOAH rules) thereby obviating the ability of a claimant to seek protection under the existing debt collection statutes. Oral argument was held before the Florida Supreme Court, and we are now over a year and a half post oral argument with no determination from the court. With that being said, we are still proceeding with litigation under the collection statutes against medical providers, creditors and debt collectors who seek to collect for the medical services provided under chapter 440 et seq.

With the business impact and effects of the pandemic seemingly behind us in Florida, it is surprising that the debt collection for medical services in violation of 440.13 is just as robust as it has ever been. We previously advised you that through 2020, nearly 50% of all petitions filed seeking payment or reimbursement of an outstanding medical bill received directly by a claimant, were filed as either first or second petitions in a claim. The total number of petitions in which medical bills or collection notices were an issue accounts for almost 11% of all petitions filed in the state of Florida since 2015 with a slight overall increase last year. What that tells us is that the medical profession is still unwilling to recognize and accept the limitations and parameters of the Workers’ Comp. Act and specifically the prohibitions in FS 440.13. Despite the numerous lawsuits filed this does not seem to suggest any change in the course of this improper debt collection activity.

There are a variety of reasons that would explain the continued aggressive medical debt collection activity and the unwillingness to alter insufficient existing policies and procedures. One major reason is the unrealistic view that the time and expense in changing an existing procedure is a far greater cost than the lawsuits that get filed and the settlements that take place for violations of the applicable statute. Typically, these cases are resolved based on the existence of a statutory penalty of anywhere from $100-$1000 for a violation and the imposition of attorney’s fees and costs which makes both state and federal debt collection statutes fee shifting in practice. This allows us to represent every claimant without any cost or contribution from them whatsoever.

In the course of this last year, we have dramatically shifted our litigation process and have started to concentrate on the potential actual damages that may exist in these cases. Actual damages have been recognized as a claimant paying all or a portion of an outstanding medical bill out of their own pocket and thus suffering financial loss and the reporting of an outstanding medical bill account on a claimant’s personal consumer credit report.

However, since Courts have also acknowledged and recognized the existence of actual damages in the form of mental anguish; the suggestion or threat of an injured worker who suffers mental anguish from receiving outstanding medical bills has proven to be a valuable arrow in the quiver in our fight against this illegal debt collection. Treatment for or damages from a claimant’s psychological or mental anguish stemming from receiving an outstanding medical bill is not something that is accepted or compensable under the Florida Workers Compensation Act.  It is, however, something that can potentially be pursued under the debt collection statutes. Please feel free to contact us to discuss these matters in greater detail and see how we could potentially help your client base in combating this continued and growing debt collection problem.