When a car crash occurs in Detroit or Michigan, the results can be devastating. People seriously injured in a wreck may need personal care as a result of their injuries. Under the Michigan No-Fault Law, this type of care is often called “attendant care.” Like an attending nurse gets paid for their work 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.
Attendant care is one of the most important and probably least understood no-fault benefits available for Michigan car, truck, or motorcycle accident victims. Attendant care is sometimes referred to as personal aide care or nursing care. It is a benefit for people who are injured in a motor vehicle accident and require personal nursing care services. The person administering attendant care can be a family member, friend, nurse, or professional service.
Attendant care services include feeding, toileting, administering medications, assisting with personal hygiene, dressing, driving, wound care, supervision, or someone just being on-call.
Who Can Provide Attendant Care?
A common misconception is that a person providing attendant care must be a healthcare professional. This is not true. Family and friends can provide attendant care and get reimbursed for their time. The auto insurance carrier is financially responsible for payments to any person who has received attendant care services so that the person can pay their care providers.
Who Pays for Attendant Care?
Attendant care is a Michigan no-fault benefit. Like any other benefit, the carrier responsible for paying all no-fault benefits must also pay for attendant care. The priority rules determine which auto carriers must pay. In general, your own auto insurance company must pay for attendant care. However, the car insurer for your spouse or family member or an insurance company assigned by the Michigan Assigned Claims Plan may be responsible.
What are Attendant Care Rates?
The Michigan No-Fault law now has a Medicare-based fee schedule that applies to all medical treatment services related to an auto accident. For services covered by Medicare, the provider will receive 190% of the Medicare reimbursement rate for treatment rendered after July 2, 2023. MCL 500.3157(2)(c).
Most attendant care services are not covered by Medicare. This means the service provider will be paid 52.5% of their “charge description master in effect on January 1, 2019” or the “average amount the person changed for [attendant care] on January 1, 2019, for services rendered after July 1, 2023.
However, most individuals and many professional nursing services did not have a charge description master in effect on January 1, 2019. Those individuals are entitled to a “reasonable rate” for the services performed. A reasonable rate can vary greatly, especially given the type of care involved and the skill needed.
Depending on the level of care involved and the nature of the injury, attendant care providers can receive hourly rate compensation ranging from $18.00 to $55.00 per hour or more. Again, there was no limit to the pay rate or the amount received. If someone needed 24/7 care, their family could get paid for the 24/7 home care, subject to some limitations.
How Do I Keep Track of Attendant Care?
Each person who performs attendant care services should complete a home attendant care form. This form should list the date of services, a brief description of the services provided, and the amount of hours spent performing the services. The Lee Steinberg Law Firm, P.C. can provide this form to you.
Remember, it is unimportant who specifically performs the services. Whether it is a close family member, friend, or a highly skilled registered nurse, you are entitled to recover the benefits you deserve.
What is the 56 Hour Rule on Attendant Care?
In June 2019, the legislature enacted a rule that capped the amount of weekly attendant care a family or friend can claim. 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 is 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.
This rule means insurance companies are only obligated to pay 56 hours per week of attendant care performed in the home by friends or family members. This new rule took effect on July 1, 2021.
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 Hoyer lifts, changing colostomy bags, wound care, and other specialized nursing care. Under the new law, subject to the exception explained below, insurance companies only must pay up to 56 hours each week, no matter how much time is spent with the patient.
Exceptions to the 56 Hour Cap Rule:
There are ways to get around the 56-hour cap, but it is limited.
Skilled Nursing Professionals
First, the cap only applies to attendant care by specific individuals “rendered in the injured person’s home.” The cap does not apply to situations where the attendant care is provided by professional skilled home health aides or nurses. The cap also does not apply when performed in a professional setting, such as a skilled nursing facility, adult foster home, or similar place.
Attendant Care is Not Nursing Care
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. As defined above, Attendant care differs from the type of “nursing care” required for catastrophically injured individuals. The types of services needed for catastrophically injured people are much more complex and skilled.
Car insurance companies disagree and fight this. They will argue that under the new law, there is no difference between “attendant care” and “nursing care.”
Pre-June 11, 2019 Car Accidents
Another major exception exists for claimants receiving attendant care through an insurance policy for a car accident before June 11, 2019. On that date, major no-fault amendments became effective, which changed many things, including how much attendant care an insurance company had to pay. Before that date, there were no hourly limitations for friends and family.
In Andary v USAA Casualty Insurance Company, the Michigan Supreme Court held that people injured before that date were not subject to the new caps on family-provided attendant care. Family members and friends could still claim 24/7 care for the services tendered.
The Court found that there was no express legislative intent to have the amendments apply retroactively. The Court stated that an injured person’s “vested contractual right to continuation of those benefits at pre-amendment levels cannot be stripped away or diminished when the Legislature has failed to clearly state its intent to do so.” The Court said that no-fault benefits are protected by contract and the no-fault law.
Attendant Care and Michigan Car Accident Lawyers
Attendant care services can be a vital part of a no-fault first-party case. At the Lee Steinberg Law Firm, P.C., our experienced and dedicated team of Michigan no-fault attorneys work to get compensation for attendant care services.
Please get in touch with our Michigan no-fault attorneys to learn more about attendant care service benefits and the Michigan no-fault law.
Our dedicated team of Michigan no-fault car accident lawyers has been assisting spinal cord injury and catastrophically injured individuals and their families for over 50 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 (1-866-503-3043) for a free consultation. And we never charge a penny until we win your case against the car insurance company.