Update Of Attendant Care Law In Michigan
by Bret Schnitzer
Attendant care is nursing care that can be provided to an injured automobile accident by family members, friends or nursing services. There needs to be a prescription for the attendant care as well as affidavits of attendant care completed by the attendant care provider. There must be an agreement to pay for the services between the injured party and the provider and an expectation to be paid by the provider.
The Michigan Supreme Court recently clarified how much and under what circumstances Michigan No-Fault attendant care benefits under MCL 500.3107(1)(a) are claimable by a family member for taking care of an injured party.
In Douglas v Allstate Ins Co, the Supreme Court reaffirmed that MCL 500.3107(1)(a) imposes four requirements an insured must prove when claiming attendant care benefits: (1) the expense must be for an injured person’s care, recovery, or rehabilitation; (2) the expense must be reasonably necessary; (3) the expense must be incurred; and (4) the charge must be reasonable.
In Douglas, Plaintiff suffered a severe closed-head brain injury. The plaintiff’s physician stated that the plaintiff required attendant care. Plaintiff’s wife provided her husband’s attendant care and submitted some attendant care forms, but did not itemize much of her claimed time.
The issues before the Court was to determine whether the services provided constituted services “for an injured person’s care,” and which expenses for Plaintiff’s care were actually incurred, and whether the hourly rate awarded by the circuit court was reasonable.
Because Plaintiff’s wife traveled to and communicated with Plaintiff’s medical providers and managed Plaintiff’s medications, the Court found that some of the claimed services could be considered attendant care services. However, the Court went on to say that “even if a claimant can show that services were for [plaintiff’s] care and were reasonably necessary, an insurer is not obliged to pay any amount except upon submission of evidence that services were actually rendered and of the actual cost expended.”
The Court reasoned that because a charge is something “required or demanded,” “the caregiver must have an expectation [of] compensat[ion] because there is no charge incurred when a good or service is provided with no expectation of compensation from the insurer.”
The Court explained that “[t]he fact that charges have been incurred can be shown ‘by various means,’ including ‘a contract for products and services’ or ‘a paid bill.’” It stated that “[a]ny insured who incurs charges for services must present proof of those charges in order to establish, by a preponderance of evidence, that [the insured] is entitled to PIP benefits.” This evidentiary standard used to determine whether expenses were incurred does not change “simply because a family member, rather than a commercial health care provider, acts as the claimant’s caregiver.”
Furthermore, the Court stated that the evidentiary requirement is most easily satisfied when an insured or a caregiver submits itemized statements, bills, contracts, or logs listing the nature of the service provided with sufficient detail for an insurer to determine whether they are compensable.
The Court ruled that “a fact-finder may base the hourly rate for a family member’s provision of attendant care services on what health care agencies compensate their employees,” not what the agency charges their patients.
In light of this ruling injury victims and the attendant care provider should pay attention to the requirements claimants must satisfy concerning attendant care before paying out PIP benefits. injury victims should make sure services provided are “for an injured person’s care, recovery, and rehabilitation,” and not “ordinary household tasks.” Moreover, injury victims and the provider must establish that there is an express intention to be compensated for the services rendered. In addition, it is now clear that a reasonable hourly rate should be agreed upon and established as well.