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Michigan No-Fault Law 101: What is attendant care?

January 4, 2012 by Steven M. Gursten

Michigan No-Fault attorneys say for seriously injured auto accident victims, attendant care nursing services are essential

There is more confusion over what attendant care is then over any other Michigan personal injury protection (PIP) benefit. Many people think of attendant care as in-home nursing services. But the definition I’ve been using when explaining attendant care to my own clients for nearly 20 years is this: because of how serious the injuries are, an “attendant” is required to provide “care” for the accident victim… That’s why they call it “attendant care.”

The vast majority of Michigan auto accident victims will never receive attendant care because they are not injured seriously enough. Attendant care is for those people who are so injured, who are so debilitated from their auto accident-related injuries that they cannot tend to their most basic needs. These are also called activities of daily living. These activities include eating, bathing, getting dressed and using the bathroom.

For people who have been seriously hurt and cannot take care of their basic needs, or who require monitoring and supervision because it is unsafe to be left alone and unsupervised, attendant care can be provided by a family member. It is considered a No-Fault PIP benefit that can be recovered from the auto insurance company responsible for paying No-Fault benefits.

Attendant care can also be provided through an auto insurance company paying for a nurse, home-health aide or, as mentioned, by someone in the victim’s family. It can also be a combination of two or three, such as a commercial agency to provide attendant care that gives family members needed breaks.

Where do I find attendant care in the Michigan No-Fault Act?

There is no specific PIP benefit called attendant care. It doesn’t exist under the No-Fault statute under that name. But, under Michigan’s No Fault Law, MCL 500.3107(1)(a), a Michigan auto accident victim is entitled to:

“Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation.”

“Care” has been interpreted by Michigan courts to include “attendant care.”

Examples of attendant care services

Attendant care comes in many forms including (but not limited to), providing assistance to auto accident victims with the following “activities of daily living”:

o Bathing
o Grooming
o Dressing and undressing
o Using the toilet
o Changing catheters
o Ambulating (walking and/or wheelchair)
o Positioning and repositioning
o Transferring from bed, chair and commode
o Wound care (changing bandages and dressing wounds)
o Supervision and monitoring
o Supervision and management of care providers
o Being “on-call” or “on stand-by” 24 hours per day/7 days per week
o Administering medication
o Managing medications
o Eating, feeding and meal preparation
o Providing transportation
o Using medical equipment
o Performing maintenance on health equipment
o Oversight of physical therapy
o Management of finances

Who pays for attendant care? The No-Fault insurer

The Michigan auto accident victim’s No-Fault insurance company pays for the victim’s attendant care — so long as the cost of the victim’s attendant care services is reasonable and the attendant care services are reasonably necessary for the victim’s care, recovery or rehabilitation.

Hourly rate for attendant care

Although the hourly rate for attendant care is frequently a source of vigorous debate between auto accident victims and their No-Fault insurance companies, it is not uncommon for victims and their attendant care providers to secure $20 an hour to $30 an hour in compensation for their attendant care providers.

In fact, in Douglas v. Allstate Insurance Company (Michigan Court of Appeals, #295484, unpublished, June 23, 2011), the Michigan Court of Appeals found “no clear error” in awarding a $40 per hour attendant care rate.

Frequently, in determining what constitutes a “reasonable” hourly attendant care rate, Michigan courts will consider the hourly rates charged by healthcare agencies whose business it is to provide attendant care to paying customers. (See Douglas; Manley v. Detroit Automobile Inter-Insurance Exchange (Michigan Supreme Court, #72621, May 29, 1986)

Here’s a recent blog I wrote about attendant care and agency rates: What is a reasonable charge for family-provided attendant care?

The attendant care disability certificate

The critical factor in establishing that a Michigan auto accident victim is entitled to No-Fault attendant care benefits is showing that the victim’s accident-related injuries have disabled her from performing her normal “activities of daily living.”

An auto accident victim’s disability for attendant care purposes is most commonly verified through an attendant care disability certificate, statement, note or prescription by one or more of the physicians who are treating the victim for his accident-related injuries.

A physician-issued attendant care disability certificate or statement may include the following:

o The auto accident victim suffered an injury or injuries arising out of an auto accident.

o The accident-related injuries have disabled the victim from performing her normal “activities of daily living.”

o Attendant care services are required to assist the victim with performance of her normal “activities of daily living.”

o Specific attendant care services are required (followed by a list of those specific attendant care services).

o The period of time during which attendant care services will be required, including number of hours per day and number of days per week.

o The diagnosis and/or diagnoses that give rise to the need for attendant care services.

More often than not, in my own accident cases that involve very serious injuries from a car accident right from the start, attendant care is nothing more than a line or two, scribbled in a script or doctor’s note, from a trauma doctor or PM&R in the hospital who states that some initial period of months is necessary because of the severity of the injuries.

If you have questions about this disability certificate, a No-Fault attorney can help you.

The affidavit of attendant care services performed

Almost as important as showing the disability that gives rise to the need for attendant care services is showing that the prescribed attendant care services were actually performed. This is also something a No-Fault attorney can help you with.

Without proof of both disability and performance, a No-Fault auto insurance company is likely to refuse payment of attendant care benefits.

Note also that even when these attendant care services are performed, the insurance company will likely also refuse payment if there is not an expectation of payment on the part of the family member or friend performing these attendant care services.

To prove that attendant care services have been performed, the auto accident victim and/or her attendant care provider must complete and submit an “Affidavit of Attendant Care Services Performed” to the victim’s No-Fault insurer.

Among other things, the “Affidavit of Attendant Care Services Performed” should probably contain the following information:

o Name of the person who provided attendant care services to the victim.

o The attendant care services that were provided.

o The dates and hours during which attendant care services were provided.

o The hourly charge.

o The total dollar amount owed for attendant care services provided.

No limit on attendant care (yet)

The No-Fault Law imposes no limits on the number of hours, days, weeks, months or years of attendant care that an auto accident victim can receive. For instance, it is not uncommon for a doctor to prescribe 24/7 — “around-the-clock” — attendant care.

However, a Michigan auto accident victim is entitled to attendant care so long as the charges are reasonable and the attendant care services are reasonably necessary for the victim’s care, recovery or rehabilitation.

Be aware that as I write these words, there is pending legislation (HB 4936) that would cap No-Fault insurance PIP benefits – including attendant care – in Michigan if it becomes law. Therefore, much as I hate to sound like a lawyer, you really should check with an experienced No-Fault attorney to make sure the law has not changed, if you’re reading these words at some point in the future.

Steven Gursten is one of the nation’s top No-Fault attorneys handling auto accident lawsuits. He is head of Michigan Auto Law and president of the Motor Vehicle Trial Lawyers Association.

Related information:

How is attendant care affected by the new Michigan car insurance law?

Attendant care FAQs

Michigan attendant care case law

HB 4936 would drastically reduce Michigan attendant care

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (800) 777-0028 for a free consultation with one of our Michigan No-Fault attorneys.

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