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Will SB 248 make No Fault attendant care retroactive?

May 4, 2015 by Steven M. Gursten

Or will current attendant care rates and hours no longer be grandfathered? Here’s how SB 248 may affect your No Fault benefits if it’s passed into law

I’ve received a number of frantic emails these past two weeks on the various proposed changes to Michigan’s No Fault laws. I’ve been an outspoken critic against these proposed changes. I believe the amendments to our No Fault law, which I will refer to as Senate Bill 248 for this blog even as it’s racing toward a possible vote later this week in the Michigan House, are a gift to the auto insurance companies at the expense of catastrophically injured auto accident victims that require critical No Fault benefits such as attendant care.

The question that most people want to know, whether they’re attorneys or people who receive attendant care or family members is this:

If SB 248 passes and becomes law, will these new changes to attendant care be grandfathered in for people currently receiving attendant care and home nursing care under the current law, or will it change under the new law?

The new law that was pushed out of the House Insurance Committee would limit home care reimbursements for family and household members of the catastrophically injured.  These changes include a new $15 an hour attendant care rate maximum,  for 24 hours per day regardless of the experience or skills of the person performing the in-home nursing care and the complexity of the care involved.

These changes would force many of the catastrophically injured onto government programs. As Mitch Albom wrote in his excellent piece opposing this insurance company/Republican power-play:

“It would do things like limit nurses or caregivers to one per person (ever tried to lift a large man who’s paralyzed with one nurse?”

Will these No Fault benefits be retroactive? Or will grandfathering be cancelled out by new law?

The legal concept people are inquiring about is called “retroactivity,” i.e., whether changes in the law apply “retroactively” to existing and open No Fault claims or prospectively only to new attendant care claims that arise after the new law has taken effect (assuming the Republicans and insurance companies successfully push this through the House later this week or next).

While the final bill that’s signed into law may change, here are my thoughts on the “retroactivity” issue in SB 248 based upon everything I’ve read:

  • The question of retroactivity is not specifically addressed in SB 248.
  • However, the bill does state that the in-home attendant care restrictions and the price controls on doctors hospitals apply “after June 30, 2016.”
  • Nevertheless, Rep. Tom Leonard and Pete Kuhnmuench, Executive Director of the Insurance Institute of Michigan, made the following statements to Crain’s Detroit Business, which suggest they believe SB 248 will have both a retroactive and prospective effect: “[E]very no-fault payer, including the new association and the legacy one, benefits from the new cost control measure, Kuhnmuench and Leonard both said. That means the old MCCA could pay out millions less per year than what was projected when the association set its premiums, and its assets could last years longer before they’re depleted.” (See “No-fault bill: $1B from health care?,” Chad Halcom, Crain’s Detroit Business, April 27, 2015)
  • It appears that the House Fiscal Agency believes  the restrictions on in-home attendant  care – as proposed in the House Insurance Committee’s version of Senate Bill 248 – will apply retroactively to “both ongoing care and new cases.” In its April 28, 2015, “Legislative Analysis” of the House Insurance Committee’s version of SB 248 (page 4), the HFA concluded:  “Attendant care provisions would apply after June 30, 2016, and would apply to both ongoing care and new cases.”

The attendant care restrictions in the Senate-passed version of SB 248 include the following limitations on in-home attendant care provided by a family or household member:

A maximum reimbursement rate of $15 per hour “regardless of the level of care provided” and “regardless of whether the family or household member is licensed or otherwise authorized to render the attendant care under … the public health code … or is employed by, under contract with, or in any way connected with an individual or agency who is licensed or authorized to render the care.” (Pages 43-44)

Contact your lawmaker to fight SB 248 and protect your attendant care rights

We strongly encourage everyone to contact their Representative in the Michigan House and let them know how you feel about SB 248’s proposed No Fault changes. What happened in the Michigan Senate, where this bill was rocketed out of committee in one day, is simply shameful.

Here’s a link to the “Legislators” page of the Michigan Legislature website, where you can find contact information for your State Representative.

This is the House Substitute for SB 248, which we’re basing our opinion on if the law changes.

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