Insurance

Federal Judge Dismisses Florida Dentist’s COVID-19 Business Interruption Insurance Claim

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By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 3, 2020, a Florida federal judge dismissed a suit for business interruption insurance payments by a Florida dentist. The dentist claimed he sustained damages caused by the COVID-19 pandemic and related civil authority shutdowns of dental services. The dismissal freed Allied Insurance Company of America from having to pay the dentist’s for COVID-19 related losses, holding that the policy’s “virus exclusion” barred coverage of the insurance claim made.

Insurance Coverage for COVID-19 Related Losses.

The dentist sued his insurance carrier for damages that he argued were “caused by or result[ing] from a Covered Cause of Loss.” The causes of the alleged loss, he maintained, included the COVID-19 virus’s impact on his dental practice and the Florida governor’s emergency declaration that limited dental services during a period of time. Specifically, he claimed that he incurred costs to decontaminate his dental office and lost valuable income because of the governor’s dental services limitation. The dentist alleged that Allied breached the insurance contract by denying coverage in April.

Allied’s insurance policy provides coverage “for direct physical loss or damage to covered property at the [plaintiff’s] premises” that is “caused by or result[s] from any Covered Cause of Loss.” Allied argued that there was no direct physical loss or damage to covered property at the clinic due to appointment cancellations or the closure of the dental practice.

Dismissal of the Law Suit.

U.S. District Court Judge John Badalamenti, for the Middle District of Florida, dismissed the case. He found that the dental practice’s loss or damage asserted was “not due to a covered cause of loss.” More importantly, he found that the policy contained an exclusion for loss or damage caused “directly or indirectly,” by “[a]ny virus, bacterium or other microorganisms that induces or is capable of inducing physical distress, illness or disease.”

According to the judge’s order, in order for the insurer to provide coverage, losses from business suspension must be caused by direct physical loss or damage. He ruled that the dentist failed to demonstrate what the policy required in order to be a covered loss. To read the order in full, click here.

With such a specific exclusion as this policy contained, it was difficult for the judge in the case to rule any other way.

 

Litigation on Whether Insurance Policies Should Cover Losses Due to Coronavirus Closures.

This recent Florida dismissal is another in a string of cases where insurers have prevailed in Coronavirus business loss cases, because of similar exclusions in their policies. In a similar case, a Michigan federal judge sided with the insurance company saying it didn’t have to cover a chiropractic office’s COVID-19 claimed losses. Like the case above, the judge said the business failed to allege physical loss and, therefore, the policy’s virus exclusion barred coverage. Click here to read the judge’s order in this case.

According to insurance experts and regulators, most businesses and professionals will probably find it difficult to obtain an insurance payout because of policy changes made after the 2002-2003 SARS outbreak. SARS, which infected 8,000 people, led to millions of dollars in business-interruption insurance claims. As a result, many insurers added exclusions to standard commercial policies for virus losses. The added policy language potentially allows insurance companies to avoid hundreds of billions of dollars in business-interruption claims because of the Covid-19 pandemic.

Since a wide-scale virus outbreak is such a rare event, most policy purchasers overlooked this exception. There certainly wasn’t any concerted effort to make insureds aware of the exclusion nor to offer them the opportunity to purchase specific virus outbreak insurance coverage.

A global pandemic presents unique problems for insurance companies. After the SARS outbreak at the beginning of this millennium, many insurance companies realized they would not be able to cover such a broad-scale event causing massive losses. Such an event could have damages greater than those sustained in the largest hurricane to strike the U.S. The insurance industry argued to state regulators that such policy exclusions were necessary, considering the overwhelming number of claims that might arise from a single disease outbreak.

This foresight on the part of the insurance companies saved their shareholders billions, if not trillions, of dollars. Unfortunately business and professionals have had to shoulder the losses.

So, it begs the question: Did insurers actually know the potential damage a viral pandemic could wreak on businesses and, therefore, purposefully exclude coverage? Disputes over the precise wording of business insurance policies will most likely continue to generate court battles like those discussed above.

Read my prior blog on this subject to learn more.

Recommendation for the Future.

There are several options that businesses and state insurance regulators should consider to try to prevent such massive losses from going uncompensated in the future.

First would be to create and provide virus damage insurance similar to that provided for flood insurance by the National Flood Insurance Program (NFIP). The biggest problem would be that losses could easily exceed the largest hurricane that one could imagine. However, the NFIP has shown this type of plan works.

Second would be similar programs provided at the state level. At the present time, many states, have captive insurance companies to fund losses from wind damage caused by storms. In Florida, the Citizens Property Insurance Corporation (CPIC) provides such coverage.

The biggest problem I see with both of the above is that short-sighted and selfish people don’t want to purchase such insurance and, thereby, make it less expensive for all involved. They figure that the government will bail them out anyway in such an event, so why should they pay. Therefore, either making it paid for completely with taxpayer money or a requirement of obtaining a business license or professional license or some combination, may be a way to finance it.

Creating a trust fund with assessments to employers and employees, similar to what is currently done for social security, would be another option. Creating a large trust fund that could cover such tragic events might work best. However, this would have to be made “raider safe” so that Congress does not come back and raid these funds and use them for other purposes like it has done to the United States Postal Service (USPS).

At the very least, some type of universal virus pandemic business loss insurance should be mandated by law or, at least, partially funded by the government. Making it mandatory means making it cheaper and making it work.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

Sources:

Zhang, Daphne. “Fla. Dentist’s Bid For COVID-19 Loss Coverage Axed.” Law360. (September 3, 2020). Web.

Zhang, Daphne. “State Farm Needn’t Cover Chiropractor’s COVID-19 Losses.” Law360. (September 3, 2020). Web.

Frankel, Todd. “Insurers knew the damage a viral pandemic could wreak on businesses. So they excluded coverage.” The Washington Post. (April 2, 2020). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2020 The Health Law Firm. All rights reserved.

 

Dentists: Tightened Controls on Prescribing to Medicare Part D Patients Could Affect Your Practice

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Starting June 1, 2015, Medicare Part D will no longer reimburse patients or pharmacies for prescriptions unless the dentist opts in and enrolls in Medicare, or opts out and enters into a private contract with the patient. This measure is part of a rule finalized by the Centers for Medicare and Medicaid Services (CMS). The purpose of the rule is to assist CMS in cracking down on doctors, dentists and other health care providers that are improperly prescribing drugs to Medicare patients.

Medicare Part D plans provide supplemental optional coverage for prescription medication used in dentistry, are administered by private health plans and are paid for by way of premiums. As a dentist, if you have patients with Medicare Part D, you need to choose whether to enroll as a Medicare provider or to opt out. Click here to read the final rule from CMS.

Specifics of the New Rule.

Dentists have until June 2015 to either enroll in Medicare or formally opt out. When a dentist enrolls, the government verifies his or her professional license and credentials, and checks his or her criminal history. In addition, the final rule expands rewards and incentive programs focusing on participation in activities that promote improved health, efficient use of health-care resources and preventing injuries and illness.

One new stipulation is that the federal government has the authority to expel physicians from Medicare if found to be prescribing drugs in an abusive manner or in violation of Medicare rules. In addition, CMS will be able to terminate a dentist’s Medicare enrollment if his or her Drug Enforcement Administration (DEA) certification has been revoked, or if the state licensing board has stripped his or her authority to prescribe drugs.

To read more on how abusive prescribing patterns will be determined, click here.

Enrolling Versus Opting Out.

If you enroll in Medicare Part D as a treating provider, then you are going to be subject to increased oversight and regulations, including:

– Fraud investigations;
– The minimum patient record retention increases from four to five years;
– You must be careful when denying services to Medicare recipients;
– You can’t charge Medicare for missed appointments; and
– You may have a percentage of your Medicare reimbursement withheld beginning next year if you don’t have electronic health records (EHRs).

On the other hand, if you opt out of part of Medicare, then you opt out of other parts as well, which may lead to a loss in revenue and disgruntled patients.

Examine Your Practice and Make Your Own Decision.

Your decision to enroll in or opt out of Medicare should be determined by the types of patients you treat and the services you provide. If your practice consists of patients under the age of 65, you may be unaffected by this rule. However, if you practice in an area with an older population, Medicare coverage is more likely to be part of your practice. The important point is to understand how it may or may not affect your practice’s bottom line. If you need some guidance or have questions, call an attorney experienced in representing dentists.

Comments?

Will this final rule affect you? If so, how? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1999-2015 The Health Law Firm. All rights reserved.

Florida Board of Dentistry Warns About Responding to or Consulting with Individuals Over Internet About Dental Issues

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 15, 2013, one of the committee chairs discussed an issue that has arisen nationally that is causing dentists legal problems. The issue arises when individuals contact a dentist over the internet seeking “information” on a dental condition or problem, and possible actions or procedures that can resolve these issues.

The concern with this is that the dentist may actually be diagnosing a dental condition or problem the individual has. The bigger concern is that if the individual contacting the dentist for information is in a different state from the one in which the dentist is licensed. Then the dentist is actually practicing dentistry in the state in which the individual is located.

In this blog I will discuss some of the issues a dentist can encounter when diagnosing a condition or problem over the internet. I will also talk about ways a dentist can reduce his or her risk.

Issues Dentists Can Face When Diagnosing a Condition Over the Web.

This can cause a myriad of different problems for the dentist involved in these situations:

1.  By diagnosing in a state in which the dentist is not licensed, he or she is engaging in the unlicensed practice of dentistry in that state. This can lead to criminal charges in that state and disciplinary actions in the state where the dentist is licensed.

2.  Cases have arisen where incorrect diagnoses have been rendered because the individual failed to provide complete information and the dentist failed to physically examine the individual or follow other procedures normally followed.

3.  There have been instances where such individuals have filed complaints or claims against dentists for providing them information upon which they relied.

4.  In most cases, a dentist’s professional liability (dental malpractice) insurance will not cover professional negligence in another state.

Recommendations to Reduce Risk.

I recommend that dentists take the following steps to help reduce risk if involved in providing information to non-patients over the internet or in the media (radio, television, newspaper, etc.):

1.  Make sure that you have proper warnings and disclaimers that are included in every such e-mail communication or listserv communication you make. Include:

A.  Include the state in which the dentist is licensed/practicing and state that the communication is not considered to be diagnosing, prescribing, treating or practicing any profession in any other state or jurisdiction.

B.  Include a disclaimer or statement in every e-mail listserv or other communication with non-patients that you are providing general information for educational purposes only and the individual must see and follow the advice of a dentist in his or her geographic area to make any diagnoses.

C.  Include that the person receiving the information cannot rely on it for treatment purposes since an actual physical examination must take place before any reliable information/recommendations can be made in any individual’s case.

2.  Inquire with your professional liability insurer or agent to ask about “broad form coverage” and attempt to obtain coverage that includes educational activities, marketing activities and other similar activities. Make sure the broad form coverage also covers these activities in different states.

3.  Make sure your professional liability insurance provides coverage for legal expenses involved in defending against administrative complaints and investigations initiated by any state or federal agency that could result in disciplinary action against you or your license. You probably need at least $25,000 in coverage for this. However, $50,000 or $75,000 in coverage for such matters is preferred. Buy this coverage separately if necessary. Lloyd’s of London provides such coverage separately.

4.  Find out where the individual contacting you resides or is communicating from. Require complete information, including complete name, address and telephone numbers.

5.  Be extremely reluctant to criticize care, services, procedures, materials or appliances used or prescribed by other dentists.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you ever been asked to consult with a patient over the internet? Did you know all of these issues could up? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

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