When a car crash in Detroit or Michigan occurs, the results can be devastating. For people seriously injured in a wreck, they may need personal care as a result of their injuries. Under the Michigan No-Fault Law, this type of care is often referred to as “attendant care”. And like an attending nurse gets paid for the work he or she does in a medical setting, a family or friend can get paid per hour by the auto insurance company for personal care given to an injured person.
For decades, the Michigan No-Fault Law provided for the payment of attendant care benefits without much of a limitation. Attendant care service is an “allowable expense.” This means so long as the care is for “for an injured person’s care, recovery or rehabilitation”, it is a benefit a car insurance company has to pay to family members caring for the injured person.
Before a change in the law in 2020, there was no dollar limitation for the amount of attendant care an auto carrier had to pay. For example, there are currently many accident victims that receive nursing care on a daily basis. Under the old law, the care providers would get paid for all the work they did. Some of these claims have gone into the millions of dollars.
Detroit and Michigan attendant care lawyers who specialize in catastrophic auto accident injury cases have helped injured people and their families navigate these confusing and stressful situations.
Example of attendant care include changing bandages, monitoring medication, helping assist in the bathroom, assisting with hygiene, helping the injured person get dressed and driving the injured person.
Depending on the level of care involved and the nature of the injury, attendant care providers would receive hourly rate compensation ranging from $12.00 per hour to $55.00 per hour or more. Again, there was no limit to the rate of pay or the amount received. If a person needed 24/7 care, their family could get paid for the 24/7 home care provided.
But in June 2019, the Michigan No-Fault Insurance Law was completed amended. Sick of having to pay out benefits to catastrophically injured individuals and seriously injured people, the fault auto insurance industry was able to limit the amount of attendant care they were responsible for paying. This was done in multiple ways.
56 Hour Cap on Attendant Care:
The first way was to institute a weekly cap on the amount of attendant care friends or family members will get paid for. Attendant care at home can be done by friends or family members, or by professional services. Most families prefer to do it themselves at home. A new law was made to cap family provided attendant care. MCL 500.3157(10) says in pertinent part:
For attendant care rendered in the injured person’s home, an insurer is only required to pay benefits for attendant care up to the hourly limitation in … MCL 418.315. This subsection only applies if the attendant care if provided directly, or indirectly through another person, by any of the following:
(a) An individual who is related to the injured person.
(b) An individual who is domiciled in the household of the injured person.
(c) An individual with whom the injured person had a business or social relationship before the injury.
In effect, the legislature has applied the weekly cap found in worker’s compensation cases to car and truck accident cases. That cap says insurance companies are only obligated to pay 56 hours per week for attendant care performed in the home by friends or family members. This new rule took effect on July 1, 2021.
This limitation has been devastating for many families and their catastrophically injured loved ones. Family members who were getting paid for 18 hours of care a day or even 24 hours of care suddenly have had the payments drop to 8 hours per day, or 56 hours per week at a maximum.
Caring for a catastrophically injured person can be a full-time, round the clock job. It involves skilled nursing care, which can include the use of a Hoyer lifts, changing colostomy bags, wound care, and other specialized nursing care. Under the new law, insurance companies only have to pay up to 56 hours each week, no matter how much time is actually spent with the patient. They also allege this includes accidents that pre-date the June 2019 change in the law.
Exceptions to the 56 Hour Cap:
There are ways to get around the 56-hour cap, but it is limited.
First off, the cap only applies to attendant care “rendered in the injured person’s home.” So this cap does not apply to situations where the attendant care is being done in a more professional setting, such as a skilled nursing facility, adult foster home or a similar place.
Second, an argument can be made that the 56-hour cap under the new law only applies to attendant care, not “nursing care.” Attendant care is defined by the Department of Insurance and Financial Services (DIFS) as:
Services to assist an injured person with tasks they would normally do for themselves (e.g., eating, bathing, dressing, grooming, and medication administration). It may also involve supervision and other types of support.
The new law only references attendant care, not nursing care. Attendant care, as defined above, is different than the type of “nursing care” required for catastrophically injured individuals. The types of services required for catastrophically injured people is much more complex and skilled.
Car insurance companies will definitely disagree and fight his. They will argue there is no difference between pay for “attendant care” and “nursing care” under the new law. But the way statute is written seems to indicate otherwise and only time will tell to see if judges allow family members to claim more than 56 hours per week in care for the treatment of catastrophically injured people.
Payment Limitation Due to Fee Schedules
In addition to the 56-hour cap, auto insurance carriers are now allowed to limit the amount they reimburse to attendant care providers.
Beginning on July 2, 2021, if Medicare did not provide reimbursement for a medical treatment or service rendered in a normal medical setting, such as a hospital or clinic, then that treatment or service is reimbursed at a capped rate. MCL 500.3157(7).
The reimbursement limitation is the following:
- For treatment or training rendered after July 1, 2021 and before July 2, 2022, 55%.
- For treatment or training rendered after July 1, 2022 and before July 2, 2023, 54%.
- For treatment or training rendered after July 1, 2023, 52.5%.
Medicare does not cover 24-hour per day care at home, meal delivery, custodial or personal care (like bathing, dressing, assistant with toileting when this is the only type of support needed) either at home or in a specialized facility.
Because of this, insurance carriers can limit the payment to only 55% of the what they were charging on January 1, 2019. In laymen terms, this means an attendant care provider who was getting reimbursed at $20 per hour before the new law can have their payments cut by 45%, or to $11.00 per hour.
Again, this is because attendant care is not a compensable service under Medicare. Because of that, a fee schedule is permitted and that fee schedule limits payments to 55% of what a provider was charging for these services on January 1, 2019.
In theory, where a mom or dad was doing unskilled attendant care, and getting reimbursed at $13.00 per hour, the insurance companies can now pay less than minimum wage.
This change in the law has been cataclysmic for the skilling nursing community in Michigan. There are skilled nursing facilities and “post-acute” facilities for badly injured people, most of them with traumatic brain injuries. These facilities are located all over Detroit and Michigan. Many are now forced to close their doors or soon will. What business can afford a 45% reduction in revenue over night? Especially with margins are less than 10% to begin with.
This tragedy has resulted in the failure to care for our most at-risk citizens. And the results have already resulted in the death of a few individuals who stopped receiving the life-saving care they were getting before July 1, 2021.
Andary v. USAA Insurance:
There is a case pending before the Michigan Supreme Court that seeks to right the wrong suffered by individuals already receiving attendant care before the change of the law. Andary v. USAA Insurance seeks to allow individuals claim more than 56 hours per week and eliminate the fee schedules.
The reason is simple. Individuals injured before the change in the law had a contract with the car insurance company. That contract said the auto insurance company had to pay for all reimbursement of “all reasonable charges incurred for reasonably necessary products, services and accommodations for [Ms. Andary’s] care, recovery or rehabilitation” without regard to any government-imposed fee schedule. A contract is a contract and the insurance companies must honor this contract.
In addition, prior case law says that the contracts that Ms. Andary had with their insurers prior to their accidents must be read in conjunction with the law as it existed at the time those contracts were entered into. The Michigan Supreme Court has not yet decided on the Andary case.
Attendant Care for Michigan Car Accident Injury Cases
As of right now, insurance companies like Farm Bureau and AAA Insurance are not honoring their contracts. They are limiting family provided attendant care to 56 hours per week. In some cases, they are not paying anything.
But under the law, they at least must pay friend, family and other individuals at least 56 hours of attendant care every week provided to individuals in need because of a car, truck or even motorcycle accident. If you have any questions about attendant care payments, or the new No-Fault Law in general, please call the attendant care lawyers at the Lee Steinberg Law Firm, P.C.
Our dedicated team of Detroit and Michigan no-fault car accident lawyers have been assisting spinal cord injury and catastrophically injured individuals, and their families, for over 40 years. We know the tricks insurance companies try to pull. We can help protect your legal rights and get you the compensation you deserve.
Please call us at 1-800-LEE-FREE (1-800-533-3733) for a free consultation. And we never charge a penny until we win your case against the car insurance company.