Attendant Care & Michigan No-Fault Insurance: What You Need To Know
Michigan No-Fault lawyers explain how attendant care services help car accident victims recover from their injuries and begin rebuilding their lives
What is attendant care?
Attendant care is a No-Fault PIP benefit that ensures that car accident victims have the nursing assistance they need to recover from their injuries and begin rebuilding their lives. It pays for a nurse or a family member to help victims with the “activities of daily living” they are too injured to do on their own.
What does it cover?
It covers assisting a car accident victim with the “activities of daily living” that he or she can no longer perform independently because of injuries he or she suffered in the accident. These activities include: bathing; dressing; eating; administering medication; and using the toilet.
Whether it is provided 24/7 or on a more limited basis, these services may involve assisting a car accident with the following activities in addition to those mentioned above: (1) monitoring and supervision for safety reasons; (2) grooming; (3) walking; (4) moving about inside and outside the home; (5) driving to medical appointments; (6) carrying and lifting things; (7) wound aid; and (8) getting in and out of bed.
Who can provide attendant care services?
Attendant care services can be provided by a certified or registered nurse or home health aide from a commercial agency or by a family member or a legal guardian of the car accident victim.
Is it provided at home or in a facility?
It can be provided in a car accident victim’s home or in a residential facility.
Who pays for attendant care services?
The “priority” rules in the No-Fault law will determine which auto insurance company will pay for your attendant care services. Generally, it will be your own insurer. Alternatively, it could be the insurer for your spouse or family member or an insurer assigned by the Michigan Assigned Claims Plan.
Suing the at-fault driver for excess attendant services
If a car accident victim’s attendant services costs exceed the No-Fault PIP medical benefits coverage level in the policy through which coverage is claimed, then the victim may sue the at-fault driver whose negligence caused the car accident for his or her “excess” costs. (MCL 500.3135(3)(c))
What are the rates for this service?
Generally, the Medicare-based fee schedule in Michigan’s new No-Fault auto insurance law will apply to all rates for these services rendered after July 1, 2021 – whether the assistance is provided in a facility or in a victim’s home or by a nurse or home health aide or by a family member of the car accident victim.
For services that are covered by Medicare, the provider will be paid between 200% and 190% of the Medicare reimbursement rate. (MCL 500.3157(2))
However, for services that aren’t covered by Medicare, the provider will be paid between 55% and 52.5% of his or her “charge description master in effect on January 1, 2019” or “the average amount the person charged for [attendant care] on January 1, 2019.” (MCL 500.3157(7)(a)) Examples that will likely not be covered by Medicare include: (1) 24/7 assistance at home; (2) assistance provided by a family member; and (3) personal assistance that involves assisting a car accident victim with bathing, dressing, and using the bathroom.
For purposes of determining what a reasonable rate is for family members providing in-home assistance, the Michigan Supreme Court provided the following guidance in Douglas v. Allstate Insurance Company (#143503, July 30, 2012) :
- “[I]t is appropriate for the [court] to consider hourly rates charged by individual caregivers when selling their services (whether to their employers that commercially provide those services or directly to injured persons) . . . because it helps the fact-finder to determine what the caregivers could receive on the open market.”
- “[W]e hold that a [court] may base the hourly rate for a family member’s provision of attendant care services on what health care agencies compensate their employees, but [not on] what health care agencies charge their patients . . .”
No-Fault PIP medical benefits coverage levels
Like other benefits covered by No-Fault Personal Protection Insurance, the amount of attendant care services that will be paid by an auto insurance company will be limited to the amount of the No-Fault PIP medical benefits coverage level in the policy through the car accident victim is claiming.
Importantly, if the policy has any level of No-Fault medical coverage other than “unlimited,” then it might also have an “attendant care rider” that would provide coverage for these services “in excess of the applicable” No-Fault PIP medical benefits coverage level selected in the policy. (MCL 500.3107c(8))
Limitations on in-home, family-provided services
For in-home, family-provided attendant care services rendered after July 1, 2021, auto insurance companies will only be required to pay for 56 hours per week. This limitation does not apply to services provided in a facility or by a nurse or home health aide from a commercial agency.
This new, unprecedented limitation on in-home, family-provided services was created by the new No-Fault law that took effect on June 11, 2019 (Public Act 21 of 2019).
Specifically, the 56-hours-per-week limitation on in-home, family-provided services for car accident victims only applies if the assistance is “provided directly, or indirectly through another person, by any of the following” people:
- “An individual who is related to” the car accident victim. (MCL 500.3157(10)(a))
- “An individual who is domiciled in the household of” the car accident victim. (MCL 500.3157(10)(b))
- “An individual with whom the [car accident victim] had a business or social relationship before the injury.” (MCL 500.3157(10)(c))
Importantly, a car accident victim and/or his or her provider can “contract” with the auto insurance company “to pay benefits for attendant care for more than” the 56-hours-per-week limitation on in-home, family-provided assistance. (MCL 500.3157(10), (11) and (14))
Some auto insurance companies may find this “contract” option appealing as in-home, family-provided services are often significantly less expensive than the commercial rate charged by agencies.
Are victims grandfathered in under the old rules?
The new No-Fault law that was enacted on June 11, 2019 as Public Act 21 of 2019 provides that after July 1, 2021, auto insurance companies are not obligated to pay for more than 56 hours per week of in-home, family-provided attendant care for car accident victims. There has been no change to this law.
Unless the Legislature acts or the courts strike down the new limitation on in-home, family-provided attendant before it takes effect, one can expect that auto insurance companies will begin applying it on July 2, 2021, which means they will likely be applying it retroactively to car accident victims whose injuries – and auto insurance policies – predated the new No-Fault law.
Whenever a law like this is made retroactive, constitutional questions may arise that can only be resolved with finality by the courts. Specifically, there are many important legal principles that will come into play in determining whether the new limitation applies retroactively or prospectively only to car accident injury victims whose policies were issued after the new law took effect.
Those principles include the following, which were acknowledged and discussed in the Michigan Supreme Court’s 2014 ruling in LaFontaine Saline, Inc., vs. Chrysler Group, LLC (#146722, June 10, 2014):
- To determine whether legislation is intended to apply retroactively, the courts will for “specific language providing for retroactive application.” This language may include the use of the word “retroactive” and/or the inclusion of an explicit instruction that the legislation is intended to apply to pre-existing contracts, i.e., the “amendments to this act that added this section apply to agreements in existence on the effective date of this section.”
- In assessing the potential for retroactive application of legislation, courts will evaluate whether “retroactive laws [take away or] impair vested rights [including existing contract rights] acquired under existing laws.” The courts will also consider whether retroactive application of legislation will “create new obligations or duties [or a new disability] with respect to transactions or considerations already past.”
- Courts recognize and uphold the principle that the laws in existence at the time a contract was created are treated as part of the contract.
Need help? Call Michigan Auto Law first
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