Under Michigan’s original auto no-fault law, every auto accident survivor had lifetime coverage for their reasonable care, recovery, and rehabilitation needs relating to their auto accident injuries. They also had the assurance that their medical providers would be paid a reasonable charge for the services and accommodations rendered to them. It was a system that provided comprehensive coverage to auto accident survivors and allowed medical providers to be paid based on a standard of reasonableness.
Under the 2019 Michigan no-fault reforms, the law is no longer focused on providing people with lifetime auto medical expense coverage for their care, recovery, or rehabilitation. Many people injured in auto accidents will now have limited no-fault medical expense coverage or none at all. Moreover, medical providers will be forced to accept drastically reduced payments for auto accident medical care.
Changes to Michigan’s Auto No-Fault Law
There are two significant changes effective as of July 2, 2021, that will prove to be especially detrimental to catastrophically injured accident survivors, their families, and medical providers: (1) the 45% payment reduction to medical providers who provide non-Medicare compensable services (2) the 56-hour per week payment cap on in-home family-provided attendant care.
Under the 55% 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 many Michigan post-acute medical providers that provide necessary services to auto accident survivors will be forced to take a 45% pay cut. This rate is not sustainable for many businesses and has already resulted in care facilities being forced to close their doors, severely limiting the opportunities for auto accident victims in need of their services.
The second change effective as of July 2, 2021, is the 56-hour per 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 number of hours 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, they will be forced to obtain the remainder of their care from commercial providers under the new auto no-fault law. However, given the devastating impacts of this fee schedule, it is likely that there will be a shortage of commercial attendant care providers, making it difficult for these families to find a commercial provider who is able to render this care.
The Lawsuit Challenging Michigan No-Fault Insurance Reform
Sinas Dramis Law Firm has filed a lawsuit on behalf of several plaintiffs to challenge these two specific provisions of the 2019 reforms. In this lawsuit, Andary et. al. v. USAA Casualty Insurance Company et. al, Sinas Dramis Law Firm represents 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 that is also where Krueger is currently a patient. The lawsuit has become commonly known as the “Andary lawsuit.” The lawsuit is currently pending in the Michigan Court of Appeals.
One of the most significant injustices addressed in the lawsuit is the unconstitutional retroactive application of these new payment limitations to individuals catastrophically injured in car accidents prior to the date the new law went into effect. 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. The lawsuit also includes challenges to the future applications of these two provisions on equal protection and due process grounds.
Below is a summary of notable updates as the Andary lawsuit progresses through the court system, an overview of the lawsuit’s current status and what to expect next, and notable documentation for reference.
Andary Lawsuit Timeline of Notable Updates
October 3, 2019 – Lawsuit Ellen M. Andary, Philip Krueger, & Eisenhower Center, v. USAA Casualty Insurance Company and Citizens Insurance Company of America was filed in the Ingham County Court.
January 6, 2020 – In lieu of filing an answer, Defendants filed a Motion to Dismiss pursuant to MCR 2.116(C)(8), alleging that Plaintiffs failed to state a claim on which relief can be granted.
March 6, 2020 – Plaintiffs filed their response to Defendants’ Motion to Dismiss citing various reasons why their claims are valid and further elaborating upon how the no-fault reforms violate their constitutional and contractual rights.
April 2020 – Various organizations with an interest in this case filed amicus curiae briefs, otherwise known as “friend of the court” briefs, in support of the parties. The following organizations filed amicus briefs in support of Plaintiffs: Coalition Protecting Auto No-Fault; Michigan Brain Injury Provider Council; Brain Injury Association of Michigan; Michigan State Medical Society; Michigan Osteopathic Association; and Michigan Association of Chiropractors.
July 22, 2020 – A hearing in the Ingham County Circuit Court was held in front of Judge Wanda Stokes. Both Plaintiffs and Defendants presented oral arguments during this hearing.
November 13, 2020 – The Ingham County Circuit Court issued an Order granting the Defendants’ Motion to Dismiss on all counts, holding that there was no retroactive interference with Plaintiffs’ contractual rights and that there was no infringement upon their due process or equal protection rights.
December 4, 2020 – Plaintiffs filed a Motion for Reconsideration, asking the court to reconsider its dismissal of the case, and a Motion to Amend Complaint, asking the court to allow Plaintiffs to add counts for additional common law contractual violations.
January 7, 2021 – A hearing was held in the Ingham County Circuit Court regarding Plaintiffs’ Motion for Reconsideration and Motion to Amend Complaint.
February 18, 2021 – The Ingham County Circuit Court issued an Order denying Plaintiffs’ Motion to Amend and Motion for Reconsideration.
March 4, 2021 – Plaintiffs filed an appeal with the Court of Appeals.
May 24, 2021 – Plaintiffs filed their Brief on Appeal in the Court of Appeals, focusing primarily on how retroactive application of the 56-hour per week limitation on in-home family provided attendant care the 55% non-Medicare fee schedule are unconstitutional and a violation of Michigan contract law. Plaintiffs also included arguments against the future application of both provisions based on equal protection and due process grounds. In addition, several organizations, including Coalition Protecting Auto No-Fault; Michigan Brain Injury Provider Council; and Brain Injury Association of Michigan filed amicus curiae briefs in support of Plaintiffs.
May 27, 2021 – Representatives Julie Brixie (D-Meridian Township) and Andrea Schroeder (R-Clarkston) filed an amicus curiae brief in support of Plaintiffs’ claims, stating that they never intended for the 56-hour attendant care limitations and 55% provider fee schedule to be retroactively applied and that they do not support the retroactive application of these provisions to individuals who were injured prior to when these reforms went into effect.
What to Expect Next for the Andary Lawsuit
It is unclear when a final decision will be made for the Andary Lawsuit, however, it is most likely that the case will not be concluded before the end of 2021. The Defendants have until July 26, 2021, to file their brief in the Court of Appeals, and other amici organizations will have the opportunity to file briefs until the deadline in August.
Once all briefs have been filed, a hearing will be scheduled for the Andary lawsuit for both parties to present oral arguments to the Court of Appeals. This hearing will likely be scheduled in the Fall of 2021, and only once oral argument has been completed will the Court of Appeals issue a decision on this case. The Court of Appeals will likely take several months to review the case before issuing a decision.
After the Court of Appeals issues a decision, both parties will have the opportunity to try and appeal to the Michigan Supreme Court. If the Supreme Court decides to take the case, litigation will continue through the Supreme Court and take even more time to reach a conclusion.
The Plaintiffs’ legal team for the Andary lawsuit has done everything possible to move this case forward in a timely manner. Unfortunately, the litigation process takes a considerable amount of time to move through the legal system. Sinas Dramis Law Firm and the Plaintiffs involved are committed to doing everything possible to fight for the legal rights of auto accident survivors.