Auto No-Fault Lawsuit Challenges Limits on Family Provided Attendant Care

family provided attendant care lawsuit

Several developments, in this case, occurred in late 2020 and early 2021. An integral member of the legal team handling this case, Lansing auto accident attorney, Lauren Kissel, provides further updates on the auto no-fault lawsuit here.

Michigan’s auto no-fault system was majorly overhauled in the name of “driving down auto insurance rates” in 2019. As a law firm representing people catastrophically injured in motor vehicle collisions day-in and day-out, we felt this reform was not what was good for Michigan. Because of this, we took a very active role in opposing the legislation. This legislation was unfortunately signed into law in May 2019. Since its passage, several concerning aspects of the new no-fault legislation remain that impact all Michigan residents. We continued to take action against this poor legislation by filing suit on behalf of several plaintiffs, and ultimately on behalf of all Michigan residents, challenging the constitutionality of these particular aspects of this law, including the new limits on family provided attendant care.

Recently, Michigan car accident attorneys, Stephen Sinas and Lauren Kissel appeared on WLAJ “In the Name of the Law” to discuss the significance of this lawsuit and what it means for people catastrophically injured in motor vehicle collisions in Michigan and their families. Clients of the firm and plaintiffs in this no-fault reform lawsuit joined them for this segment.

No-Fault Reform Lawsuit Basics

Last year, our firm filed suit challenging two specific provisions of the new no-fault law. That lawsuit is currently pending in the Ingham County Circuit Court. We represent three plaintiffs, including Ellen Andary, who was catastrophically injured in a motor vehicle accident in 2014, Philip Krueger, who was catastrophically injured in a motor vehicle accident in 1990, and the Eisenhower Center (a neurological rehabilitation center in Ann Arbor). Krueger is currently a patient at the Eisenhower Center.

The two aspects of the new no-fault law we are challenging in this lawsuit include:

  1. The 56-hour a week cap on in-home family provided attendant care. The term “family provided attendant care” encompasses any caregiver who knew the auto accident victim prior to their injuries. This could be friends, family members, former colleagues, neighbors, etc. The amount of attendant care services that these individuals can be reimbursed for will be capped at 56 hours per week. If the victim needs more than 56 hours of attendant care per week, he or she will be forced to obtain the remainder of their care from commercial providers under the new auto no-fault law.
  2. The 55% fee schedule that applies to the services not compensable under the Medicare fee schedule. For non-Medicare compensable services, the reimbursement rate is capped at 55% of what the provider charged for such services on January 1, 2019. In the instance of this lawsuit, the Eisenhower Center’s services are not compensable under Medicare and it will be forced to take a 45% pay cut. Many medical providers will not be able to operate at such a reduced reimbursement rate and will be forced out of business.

Retroactivity of These Provisions

Our firm’s primary argument is that the retroactive application of these two main provisions to individuals injured in car accidents prior to the date the new law went into effect is unconstitutional. The Andary family and the Krueger family bought insurance policies that allowed them to be reimbursed for all reasonably necessary attendant care services regardless of the identity of the attendant care provider and all reasonably necessary medical treatment regardless of any government-imposed fee schedule. Their right to these benefits vested as of the date of the respective accidents. Now the government is retroactively altering those rights in violation of the pre-existing contractual obligations between the injured individual and his or her insurance company. We are also challenging the future applications of these two provisions on equal protection and due process grounds. As of the airing of this “In the Name of the Law” episode in September 2020, we are awaiting a response from Judge Stokes with the Ingham County Circuit Court on how this lawsuit will proceed.

New Limits on Family Provided Attendant Care

It’s important to remember the real people and real families behind lawsuits such as this new auto no-fault lawsuit. The Andary family shared their experience with the no-fault system which, up until this time, has allowed the family to provide all of their injured loved one’s care in-home. Ellen’s husband, Dr. Michael Andary, a well-respected physician who had years of experience caring for catastrophically injured motor vehicle victims like Ellen prior to her accident in 2014, supervises this care. Many, including the Andary family, view the care provided by family members and friends of survivors of catastrophic vehicle accidents as the best possible care attainable.

With capped family provided attendant care, new caregivers must come into the home to provide that care for any additional hours needed above that cap per week. For severely injured people who require round-the-clock care, that means 112 hours a week (66%) of their care will now be provided by strangers in the home. For individuals such as Ellen, forcing them to accept the majority of their care from strangers will be detrimental to their overall health and progress.

Attendant Care and Alleged No-Fault Insurance Fraud

Legislators will tell you that the new limits on family provided attendant care is the direct result of alleged fraud in the no-fault system. Our firm believes strongly that the issue of fraud regarding attendant care could have been combated in a much different way than capping the hours in which a family can provide this care. The new limits on family provided attendant care are particularly egregious because these rights were established previously via a private contract.

We continue to fight for the rights of injured people in Michigan in a variety of ways, this new no-fault lawsuit being one of them. We will announce any updates in this lawsuit as we learn of them.