The concept of “internal appeals” in PIP is not new, and it is a subject of which lawyers actively practicing injury law in New Jersey should be well aware. However, if DOBI gets its way, the framework governing the internal appeals process may be soon changing rather dramatically. As such, if your practice includes motor vehicle accident claims, this is an issue to which you should be paying attention! By way of background, let’s first look briefly at the present form of the regulations governing the internal appeals process.
N.J.A.C. 11:3-4.9(a)(1) currently only grants “authority” to the insurers to require medical providers to comply with all requirements of their Decision Point Review (“DPR”) plans as a condition of taking an assignment of benefits from their patient (your client). N.J.A.C. 11:3-4.7(c)(6), requires that each insurer’s DPR plan contain an internal appeals process, but does not mandate that the DPR plans require exhaustion of this appeals process as a prerequisite to arbitration. However, as you may or may not be aware, DOBI published a great many proposed changes to the PIP regulations in August 2011. Appeals have been filed with regard to these proposed changes, and arguments on the issues raised are currently pending before the courts. However, a substantial change has been proposed to the procedure outlined above, which may have some rather dramatic implications for your clients and your practice. In this regard, I want to high-light 4 key changes which are currently “proposed:
- As part of DOBI’s purported desire to institute a uniform appeals process, the internal appeals mechanism is slated to become mandatory rather than permissive. Further, under the proposal, appeals concerning adverse “treatment” decisions must be filed within 30 days of the decision date! Arguably, the practical effect of this provision is to fashion a very short statute of limitations governing disputes over the denials of care by a PIP carrier. This is a very substantial issue, and one of which all P.I. practitioners should be acutely aware. Please note, the proposal deems that “medical necessity” decisions constitute “treatment” determinations;
- If the 30 day deadline for filing a “treatment” appeal is missed, the proposal builds in one opportunity to seek an “additional decision point review” for the “treatment or test which was at issue”. While this essentially provides a “second bite” at the appeals apple, the potential for a very short filing deadline continues to loom large;
- The new proposed regulations authorize both the insured and the provider to initiate the appeals process. This is significant, as appeals previously had to be filed by the provider; and,
- The new proposed regulations state that if a PIP arbitration is ultimately filed based upon the denial of an internal appeal, the provider or insured will be limited to arguments and information which were submitted with the internal appeal.
So, what does all of this mean for you and your practice?
- First, be aware! While these changes are currently in the proposal stage, they may well be instituted and become a fact of life for your practice.
- Second, if implemented these changes will mandate that you, as the lawyer, will need to pay attention to the “DPR” notices which you regularly receive from your client’s PIP carriers. Where treatment has been denied, you should be prepared to take prompt action to protect your clients’ rights up to and possibly including filing for the internal appeal yourself.
- Third, any lawyer considering filing such an appeal must take care to cover all of the potential bases in the arguments raised, as the information in this appeal would govern and limit the arguments which may be raised in a subsequent arbitration.
- Finally, given each of the points outlined above, the best approach for any lawyer who lacks an intimate familiarity with the specifics of the world of PIP may well be to establish a referral relationship with an experienced PIP attorney and promptly refer any and all such disputes to them!