Current through Register Vol. 56, No. 24, December 18, 2024
(a) A
request for dispute resolution of a PIP dispute may be made by the injured
party, the insured, a provider who is an assignee of PIP benefits pursuant to
N.J.A.C.
11:3-4.9 or the insurer, in accordance with
the terms of the policy as approved by the Commissioner. The request for
dispute resolution may include a request for review by a medical review
organization. The request shall be made to the administrator and copies sent to
other parties.
1. Every insurer shall
establish a single address where requests for dispute resolution shall be sent.
Insurers shall notify the administrator of the address and any changes thereto.
The administrator shall make the list of insurer addresses available to the
user community on a web page and any other available means of
communication.
2. Providers who are
the assignee of benefits by the insured or have a power of attorney from the
insured shall follow the insurer's internal appeal process mandated by
N.J.A.C.
11:3-4.7B before making a request for dispute
resolution in accordance with (a) above. The dispute resolution organization's
plan shall include a procedure for how the provider shall demonstrate that this
requirement has been satisfied.
(b) Upon receipt of the request, the
administrator shall promptly assign the matter to a dispute resolution
professional. For in-person proceedings, the administrator shall notify all
parties of the DRP assigned at the time the assignment is made. For
on-the-papers proceedings, the parties will receive notice of the DRP assigned
at the time the decision is issued.
(c) If the request for dispute resolution
includes a request for review by a medical review organization, the
administrator shall refer the matter to a certified medical review organization
contemporaneously with the assignment of the DRP, and shall notify the parties
and the DRP that the matter has been referred. If the initial request does not
include a request for review by a medical review organization, then a request
for such review may be made by any party to the assigned DRP. The DRP may refer
a matter to a MRO on his or her own initiative upon a finding that the dispute
concerns the diagnosis, medical necessity of treatment or diagnostic test
administered to the injured person, whether the injury is causally related to
the accident or is the product of a preexisting condition, or the protocols
utilized by a provider. Whenever a DRP receives or initiates a request for MRO
review, he or she shall transmit it to the administrator for referral who shall
refer the matter to a certified MRO and notify the parties that the matter has
been referred.
1. The administrator shall
refer cases on a random or rotating basis to an MRO that does not have a
conflict of interest, in accordance with the administrator's dispute resolution
plan. Referrals shall be made in such a manner so as not to disclose the
medical reviewer the identity of the insurer, nor to disclose to the insurer
the identity of the medical reviewer.
2. Upon request of the MRO, a provider whose
services are the subject of review shall promptly furnish a written report of
the history, condition, treatment dates and results of diagnostic tests
performed, and shall produce and permit the copying and inspection of all
records relating to the history, treatment and condition of the injured person,
and shall submit all necessary documentation as requested. Upon request of the
MRO through the administrator, the insurer shall submit any and all
documentation concerning its review of the treatment and testing of the injured
person, and any reports by its reviewing provider why reimbursement for the
treatment, test or item of durable medical equipment was denied.
3. The MRO may request an injured person to
submit to a mental or physical examination by an independent provider in the
same discipline as the treating providers who is not affiliated with either the
treating provider, the insurer or the MRO health care provider performing the
review. Any such examination shall be conducted in a place reasonably
convenient to the injured person. The MRO shall make available to the examining
provider any pertinent medical records.
4. If at any time the MRO determines that it
has a conflict of interest in performing a particular review, it shall notify
the administrator which shall refer the case to another MRO.
i. Under such circumstances, the
first-assigned MRO shall transmit to the newly assigned MRO such documents from
the treating provider and the insurer as it has accumulated on the case, as may
be directed by the administrator.
ii. The first-assigned MRO shall not be
entitled to any reimbursement for work performed on the transferred
case.
(d)
Determination by the dispute resolution professional shall be in writing and
shall state the issues in dispute, the DRP's findings and legal conclusions
based on the record of the proceedings and the determination of the medical
review organization, if any. The findings and conclusions shall be made in
accordance with applicable principles of substantive law, the provisions of the
policy and the Department's rules. The award shall set forth a decision on all
issues submitted by the parties for resolution.
1. If the DRP finds that the determination of
a medical review organization is overcome by a preponderance of the evidence,
the reasons supporting that finding shall be set forth in the written
determination.
2. The award shall
apportion the costs of the proceedings, regardless of who initiated the
proceedings, in a reasonable and equitable manner consistent with the
resolution of the issues in dispute.
(e) Pursuant to
N.J.S.A. 39:6A-5.2(g), the costs of
the proceedings shall be apportioned by the DRP and the award may include
reasonable attorney's fees for a successful claimant in an amount consonant
with the award. Where attorney's fees for a successful claimant are requested,
the DRP shall make the following analysis consistent with the jurisprudence of
this State to determine reasonable attorney's fees, and shall address each item
below in the award:
1. Calculate the
"lodestar," which is the number of hours reasonably expended by the successful
claimant's counsel in the arbitration multiplied by a reasonable hourly rate in
accordance with the standards in Rule 1.5 of the Supreme Court's Rules of
Professional Conduct (
https://www.njcourts.gov/attorneys/assets/rules/rpc.pdf).
i. The "lodestar" calculation shall exclude
hours not reasonably expended;
ii.
If the DRP determines that the hours expended exceed those that competent
counsel reasonably would have expended to achieve a comparable result, in the
context of the damages prospectively recoverable, the interests vindicated, and
the underlying statutory objectives, then the DRP shall reduce the hours
expended in the "lodestar" calculation accordingly; and
iii. The "lodestar" total calculation may
also be reduced if the claimant has only achieved partial or limited success
and the DRP determines that the "lodestar" total calculation is therefore an
excessive amount. If the same evidence adduced to support a successful claim
was also offered on an unsuccessful claim, the DRP should consider whether it
is nevertheless reasonable to award legal fees for the time expended on the
unsuccessful claim.
2.
DRPs, in cases when the amount actually recovered is less than the attorney's
fee request, shall also analyze whether the attorney's fees are consonant with
the amount of the award. This analysis will focus on whether the amount of the
attorney's fee request is compatible and/or consistent with the amount of the
arbitration award. Additionally, where a request for attorney's fees is grossly
disproportionate to the amount of the award, the DRP's review must make a
heightened review of the "lodestar" calculation described in (e)1
above.
(f) The award
shall be signed by the dispute resolution professional. The original shall be
filed with the administrator, and copies provided to each party. If the award
requires payment by the insurer for a treatment or test, payment shall be made
together with any accrued interest ordered in the award pursuant to
N.J.S.A. 39:6A-5, within 45 days of the insurer's
receipt of a copy of the determination, unless one of the actions permitted in
(g) below has been filed. Where the arbitration has been filed by a provider
who is the assignee of benefits pursuant to
N.J.A.C.
11:3-4.9, the payment shall be made payable
to the provider.
(g) The final
determination of the dispute resolution professional shall be binding upon the
parties, but subject to clarification/modification and/or appeal as provided by
the rules of the dispute resolution organization, and/or vacation, modification
or correction by the Superior Court in an action filed pursuant to
N.J.S.A. 2A:23A-13 for review of the award.
