Regulation of Medicine
Avoiding Penalties Under the Florida Consumer Collection Protection Act
The Florida Consumer Collection Protection Act (FCCPA), which is designed to protect consumers from intentionally unfair collection practices by creditors, has spawned a cottage industry of plaintiff’s law firms seeking out defendant healthcare providers — a group not traditionally thought of as debt collectors. Automated collection calls, standard invoice letters and contracts with collection agencies present these attorneys with an opportunity to file suit against physicians under this law. Healthcare organizations should familiarize themselves with the FCCPA and amend their internal policies to decrease exposure and increase compliance with the act.
Ensure that your practice has internal policies in place to identify and immediately record changes to a patient’s collection information from any source, including:
- Revocation of consent to being contacted (being told to stop calling)
- Representation by legal counsel (receiving an email or letter from a law firm)
- Partial payment of an account balance
- Treatment under workers’ compensation
- Changes in insurance coverage
If any of the above information is identified for a patient, avoid sending the debt to a collection agency. Rather, notate or place an internal hold on the patient’s records, which indicates that collection attempts should not be made for the debt. You may consider writing off the balance. Good employee training is key to not only recognizing, but also escalating sources of potential collection problems.
If sued and the FCCPA claim has merit, resolve the claim as quickly as possible to avoid mounting attorneys’ fees. Settlement is usually the best option in these cases, so retaining rapport with plaintiff’s counsel can promote a streamlined resolution.
If the violation was not internal and your collection agency is responsible, enforce the indemnity provision of your contract through subrogation. You can review your contract now to determine if it needs to be amended to allocate risk and expense to them in the event of a violation of the FCCPA and FDCPA (the Fair Debt Collection Practices Act, which is the federal act that is often used in conjunction with alleged FCCPA violations).
The FCCPA is designed to protect consumers, including patients, from intentionally unfair collection practices by creditors. The law contains 19 subsections that identify violations for which a consumer debtor can seek relief. Three of the most common violations are:
- Contacting a debtor represented by an attorney when the creditor should have known of the debtor’s legal representation.
- Abusing or harassing a debtor with repeated correspondence. “Harassing” can include just a few attempts to collect if the practice knows the debtor is not responsible for paying the balance. For example, treating a patient for a work injury is enough to indicate that workers’ compensation insurance should be responsible for payment.
- Using an auto-dialer to call a debtor’s cell or work phone.
What Constitutes a Violation of FCCPA?
Everyday collection practices by practitioners can violate the provisions of the FCCPA. A few examples of violations are:
- Communicating by letter directly or through a collection agency with a patient regarding outstanding charges after receiving notice that the patient has retained legal counsel.
- Sending a patient an invoice when a worker’s compensation insurer should have been billed in lieu of the patient after receiving notice that the insurer is responsible for care.
- Attempting by letter to collect on a debt after receiving notice that the patient had been declared bankrupt.
- Calling the debtor’s personal and work phone after the debtor said to stop calling and could not pay.
Defending a FCCPA Violation
By following the recommended actions above, you will be in a position to defend against a violation. The FCCPA states “[a] person may not be held liable ... if the person shows … the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid such error.” Maintain procedures to identify and immediately record changes to a patient’s collection information so when an error does occur a monetary award to the plaintiff will not be justified. We recommend that if you are sued, you contact a defense attorney to determine whether you have a bona fide error defense or should consider an early resolution.
A physician in violation of the FCCPA can be burdened with the following civil penalties :
- Actual damages
- Additional statutory damages up to $1,000 per action
- Punitive damages
- Court costs
- Attorneys’ fees
In the event of a class action suit, the practice could be liable for additional statutory damages up to $1,000 for each named plaintiff.
Physicians should be especially wary of attorney’s fees. Because the FCCPA requires a defendant to pay the attorneys' fees of a prevailing plaintiff, further litigating and defending against an action can lead to extremely high fees.
- Ensure that your practice has written policies and procedures in place that mandate employees to properly record changes to a patient’s collection information immediately upon receiving it.
- Ensure that all staff members are adequately trained regarding these new requirements and can implement your practice’s policies.
- If you are sued under the FCCPA, be sure to contact a defense attorney well-versed in this area of the law who can identify whether you should settle your claim or whether you have a bona fide error defense.
While violations of this law can result in a provider facing civil penalties, the frequency of such claims is currently low, but increasing. The primary cost tends to be attorneys’ fees.
Answers are provided below.
True or false?
Question 1: A physician performed a biopsy on a patient. After the appointment, a nurse took the patient’s insurance card and the client made the $15 co-pay using his credit card. The nurse found out three days later that the insurance policy had lapsed and that insurance would not cover the $350 biopsy appointment. The nurse then called the patient, informed the patient his insurance policy had lapsed, and asked how he would like to pay the remaining balance. The patient stated that he could not pay the rest of the balance at that time and to not contact him, but instead his attorney with any further questions. A month later, the office manager hired a collection agency to help clean up some of the bad debt. A collection agent called the patient and asked him to pay the $350 balance. The provider is liable under the FCCPA.
Question 2: Criminal penalties up to $1,000 per action can be brought against a provider who violates the FCCPA.
Question 3: Defending an FCCPA violation claim brought by a plaintiff’s attorney is usually the best option because statutory damages are capped at $1,000 per action and actual damages are usually nominal because of the nature of the claim.
Question 1: True. The FCCPA prevents a provider from communicating with a patient when the provider knows that patient is represented by an attorney. Further, calling a patient after they ask not to be called could constitute intentional harassment. Lastly, the amount demanded by the creditor needs to be accurate and this hypothetical leaves some ambiguity as to whether the outstanding balance was $350 or $335 (the total less the $15 co-pay).
This provider should have had better internal policies in place to prevent this from happening. The administrative assistant should have been under guidance to make note of the patient’s revocation of consent to contact, his representation by his attorney, and his partial payment of $15. The collection agency should have been privy to this information so that they could instead contact the attorney to demand payment.
Question 2: False. The FCCPA does not inflict criminal penalties upon providers; the law only inflicts civil penalties.
Question 3: False. While the FCCPA does cap civil damages at $1,000 per action and often actual damages are nominal, generally, the bulk of the damages associated with an FCCPA violation is the payment of the plaintiff’s attorneys’ fees in an unsuccessful case for the defendant. For instance, a defendant creditor seeking $500 from the plaintiff debtor may end up having to pay $1,000 in statutory damages, $1 in actual damages, but upwards of $10,000 in attorneys’ fees.
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The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.