Andary Lawsuit Updates
The Andary Case: Civil Justice for Some of Michigan’s Most Vulnerable
March 2023
Listen to attorney George Sinas discuss the Andary Lawsuit on the Mildred Gaddis show.
Thousands of Lives Hang in the Balance as Michigan Supreme Court Hears Arguments in Key Auto Insurance Lawsuit
Decision in the Andary case, which impacts nearly 17,000 survivors including Vladimir Konstantinov, is expected later this year
LANSING, Mich.—(March 2, 2023)—The quality of life for nearly 17,000 crash survivors and their families hangs in the balance today, after the Michigan Supreme Court heard arguments in the case of Andary et al. v USAA Casualty Insurance Company et al.
“The retroactive application of the changes in Michigan’s auto no-fault law have seriously and deleteriously impacted the plaintiffs and have massively disrupted the lives of thousands of Michigan survivors and their families,” said Joanne Swanson, amicus counsel for CPAN, which submitted an amicus brief in support of the plaintiffs. “Thousands of motor vehicle accident victims have suffered greatly from their crash leaving them catastrophically disabled, and now are profoundly suffering from a lack of access to care.”
Last August, the Michigan Court of Appeals ruled 2-1 in favor of the plaintiffs, determining that the benefit reductions passed as part of 2019 auto insurance reforms could not be applied retroactively to persons who were injured before this law went into effect. The lawsuit was filed in 2019 by guardians of two catastrophically injured auto accident victims, along with the nationally renowned brain injury rehabilitation clinic Eisenhower Center. The victims, on whose behalf the lawsuit was filed, are Ellen Andary, of East Lansing, and Philip Krueger, of Ann Arbor.
That decision was appealed by the defendants; a final decision from the Supreme Court is expected later this year.
One of the thousands of survivors impacted by the case is Detroit Red Wings legend Vladimir Konstantinov, who was catastrophically injured in a limousine accident in 1997, shortly after helping the Wings win their first Stanley Cup in 42 years. If the Supreme Court overturns the decision in the Andary case and Konstantinov loses access to his specialized 24/7 care, his attorney and longtime friend James Bellanca said in a television interview that “I personally believe he will deteriorate and he will die.”
In addition to CPAN, a diverse constellation of medical providers, crash survivors, legislators and consumer protection organizations submitted amicus briefs in support of the plaintiffs, including the Michigan Association for Justice, the Michigan Brain Injury Provider Council, the Brain Injury Association of Michigan , the Michigan Osteopathic Association, Representatives Julie Brixie and Gary Howell, the American Civil Liberties Union joined by Disability Rights Michigan, Detroit Disability Power, Michigan Statewide Independent Living Council, Legal Services Association of Michigan, and Michigan State Planning Body, and 10 injured individuals who currently have their own cases in litigation being handled by attorney Stephen Hulst of Rhoades McKee.
The Michigan Osteopathic Association’s brief featured a sworn affidavit by four physicians, who specialize in treating catastrophically injured individuals. In one affidavit, Dr. Owen Perlman addressed the devastating impact the law has had on several of his patients, including some that have died.
“I had a 47-year-old patient who sustained quadriplegia from the neck down in a 1994 accident,” Perlman wrote in the affidavit. “She had much medical morbidity. When she had consistent trained nurses, she would intermittently need to go to the hospital for treatment of significant medical problems but was always able to recover at home. More recently, during the summer and fall of 2022, she had further problems. After a surgical procedure, she ended up on a ventilator. When told she was going to require a tracheostomy, she was concerned that with less staff, she would not be able to be safely managed at home. As a result, she declined the tracheostomy. She passed away on Oct. 3, 2022.”
February 2023
Download amicus briefs from several organizations and individuals filed in the Supreme Court:
January 2023
Download the plaintiffs’ brief on appeal in the Andary case.
September—November 2022
On September 7, 2022, the defendant insurance companies filed an Application for Leave to Appeal to the Michigan Supreme Court and a Motion for Immediate Consideration of their Application, asking the Supreme Court to expedite review. Defendants also filed a Motion to Stay Precedential Effect of the Court of Appeals’ Decision and a Motion for Immediate Consideration of that motion, essentially asking the Supreme Court to rule that the Court of Appeals’ decision is not binding on lower courts and the lower courts are free to rule on similar cases however they see fit.
On September 29, 2022, the Supreme Court issued two Orders. The first Order granted defendants’ Application for Leave to Appeal and Motion for Immediate Consideration of the Application. In doing so, the Supreme Court directed the parties to submit briefing on the following three issues:
“[W]hether the Court of Appeals erred when it: (1) held that claimants injured before the effective date of 2019 PA 21 are not subject to the limitations on benefits set forth in MCL 500.3157(7) and (10); (2) held that application of the amended statute to such claimants would violate the Contracts Clause of the Michigan Constitution, Const 1963, art 1, § 10; and (3) remanded the case to the circuit court for discovery to determine whether the no-fault amendments, even when applied only prospectively, pass constitutional muster.”
The Order also indicated that the case would be placed on the Court’s March 2023 session calendar and invited all amici who previously participated to file briefs again.
The second Order denied defendants’ Motion to Stay Precedential Effect. Accordingly, the Court of Appeals’ decision in Andary continues to be binding precedent on all courts in this state unless it is overturned by the Supreme Court.
On November 28, 2022, the defendant insurance companies submitted their Brief on Appeal. Plaintiffs’ response brief is due January 16, 2023. Defendants’ response brief and all amicus briefs are due February 6, 2023. As indicated in the Court’s Order, oral argument will be heard in March 2023. It is impossible to say exactly when the case will be decided, but it is likely that the Supreme Court will render its opinion sometime in the summer of 2023.
August 2022
CPAN ANDARY COMMUNICATION
I. Andary Decision Summary
On August 25, 2022, the Michigan Court of Appeals issued its decision in the case of Andary et al. v USAA Casualty Insurance Company et al. Docket No. 356487. It was a published, 2-1 decision, written by Judge Douglas Shapiro, joined by Judge Sima Patel. The dissenting Judge was Jane Markey. This long-awaited decision resulted in very significant rulings regarding whether the medical expense fee schedule reductions and the family provided attendant care limitations of the 2019 auto no-fault insurance reforms (PA 21) can legally be applied to persons who purchased auto no-fault insurance policies and were injured before the new law went into effect. In ruling that these benefit cutbacks could not legally be applied to such patients, the Court of Appeals rendered three holdings: (1) the new legislation did not contain specific and sufficient language confirming that the legislature intended to apply these changes retroactively, and therefore, the longstanding legal principle that new legislation is presumed to have prospective application only, could not be overcome; (2) even if the new legislation had contained sufficient provisions confirming that the legislature had intended to apply these benefit reductions retroactively to persons who purchased policies and were injured before the changes went into effect, such an attempt at retroactive application would be an unconstitutional violation of Article 1, Section 10 of the Michigan Constitution. That provision prohibits the passage of laws that impair the obligation of existing contracts; and (3) the trial court improperly dismissed plaintiffs’ constitutional equal protection and due process challenges, alleging that such benefit reductions would violate these constitutional provisions if applied to future accident victims, for the reason that those constitutional challenges required factual development in order to properly determine their validity.
In elaborating on its conclusions, the majority opinion stated:
“On the date of the accidents, the recovery of PIP benefits for an injured person’s care, recovery or rehabilitation was limited only by the reasonableness and necessity of the provider’s customary charges. See MCL 500.3107(1); former MCL 500.3157. These statutory provisions were expressly referenced or incorporated into the pre-amendment no-fault policies. Therefore, insureds and those whose benefits are provided by their policies had a legitimate expectation that should they be injured in a motor vehicle accident, they would receive unlimited lifetime benefits, so long as the charges were reasonable and the care reasonably necessary. These individuals “did not bargain for or contemplate,” that limits would be placed on the amount of attendant care family members can provide an injured person, or that treatment not compensable by Medicare would be limited to 55 percent reimbursement from the insurer. And these new limitations do not create minor or collateral effects on those settled expectations; to the contrary, they directly and drastically limit the ability of motor vehicle accident victims to continue to obtain the care they require. Indeed, accident victims and those who care for them have relied on these benefits for nearly 50 years . . . Finally, the number of catastrophically injured individuals that would be affected by retroactive application of the amendments is by no means de minimis. According to the Michigan Catastrophic Claims Association (MCCA), there are more than 17,000 victims of pre-amendment auto accidents whose benefits would be cut . . . [S]ince the insurers have already been paid for the benefits promised under those policies, retroactive application would permit insurers to retain all the premiums paid prior to the 2019 amendments while allowing them to provide only a fraction of the benefits set out in those policies. Giving a windfall to insurance companies who received premiums for unlimited benefits is not a legitimate public purpose, nor a reasonable means to reform the system . . . the lifetime unlimited benefits that the insurers were paid for will be severely impaired if the amendments are given retroactive effect. Defendants have not shown that retroactive application of the amendments is necessary to accomplish the goal of lowering no-fault policy premiums. Nor have defendants explained how applying the amendments to those injured before the amendments’ effective date is reasonable, especially considering that the relevant premiums have already been paid in full.” Pp. 6 – 7, 13 (citations omitted).
Judge Markey dissented, asserting that there was sufficient indication of a legislative intent to apply the benefit limitations retroactively and that any interference with existing contracts was not substantial enough to violate the Contracts Clause of the Michigan Constitution. Moreover, Judge Markey believed that reducing the benefits of accident victims injured before the recent legislative amendments, was reasonably related to the premium reduction objectives of the new law.
In light of the fact that this decision is published, it has immediate precedential effect. This principle is confirmed in the Michigan Court Rules, MCR 7.215(C)(2), which states:
“A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an application for leave to appeal to the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.”
Accordingly, insurance companies are legally obligated to pay the benefit claims of persons injured prior to the effective date of the new law, based upon the benefits that were available to such persons prior to those law changes. Therefore, such patients cannot have their medical expense benefits reduced by fee schedules, nor can an insurer limit reimbursable expenses for family provided attendant care to the hourly limitations set forth in the new law. The case will continue to have binding precedential effect unless it is overturned by the Supreme Court.
The defendant insurers in this case have announced they will seek an appeal to the Michigan Supreme Court, and have 42 days from the date of the Court of Appeals’ decision to file an Application with that Court seeking leave to appeal.
Unless the decision is reversed by the Supreme Court, it will enable thousands of severely injured accident victims to continue receiving medical expense and home care reimbursement at the benefit levels that were legally enforceable under insurance policies that those victims bought and paid for years before the new laws went into effect. In addition, the decision will prevent insurance companies from reaping windfall profits by retaining premiums they collected years ago to pay benefits they would no longer be required to provide.
II. Proactive Action by Some May be Necessary
There is nothing in the Andary opinion that would suspend the operation of the statute of limitations and one-year-back rule provisions of Section 3145 of the No-Fault Act. In pertinent part, those provisions prevent a claimant from being able to legally enforce payment of overdue no-fault benefits for services rendered more than one year prior to the filing of a lawsuit. There is a tolling exception in the new statute that says the time limitations are “tolled from the date of a specific claim for payment of the benefits until the date the insurer formally denies the claim. The subsection does not apply if the person claiming the benefits fails to pursue the claim with reasonable diligence.” However, reliance on this tolling provision is not recommended. Rather, to ensure the one-year-back rule is tolled, patients and providers who have unpaid claims for services should file litigation before the expiration of the one year period that starts running from the date the unpaid service was rendered. However, it should be noted that, trial courts may decide to stay such lawsuits in the event an appeal of the Andary case is filed in the Supreme Court until such time as the Supreme Court renders a final decision in the case.
III. CPAN’s Activity Post-Andary
Since the Andary decision was rendered on August 25, 2022, CPAN has done the following:
A. Press release dated August 25, 2022.
On the date of the decision, CPAN issued a press release, which you can find here. The release speaks for itself.
B. Reaction by CPAN General Counsel.
CPAN has asked its general counsel, George T. Sinas, who is also lead counsel in the Andary litigation, to give us his reaction to the recent Court of Appeals’ decision in that case. Mr. Sinas responded with this statement:
“It’s important for the public to understand the terrible injustice that this court decision so appropriately addresses. The insurance industry’s attempt to retroactively apply the medical benefit cuts contained in Michigan’s new auto no-fault insurance law to those patients who sustained severe injury years before the law went into effect, has been devastating. Thousands of Michigan families who purchased auto insurance policies that did not contain these severe benefit reductions have been subjected to a cruel rule change that has deprived them of the essential care that they had been receiving; that they were depending upon; and that they had previously paid premiums to secure. It is indeed uplifting to see our court system protect Michigan consumers and disabled people by not allowing their vested legal rights to be taken away by inappropriately applied legislation.
Unfortunately, the insurance industry has announced its intent to appeal the Court of Appeals’ decision to the Supreme Court in furtherance of its totally baseless claim that this decision will interfere with the premium reducing objectives of the new auto insurance law. The fact of the matter is that the insurance industry has never come close to proving that stripping existing patients of their medical benefits has anything whatsoever to do with significantly reducing premiums for consumers in the future. In reality, there is no such connection. Whether or not the new law will achieve meaningful premium reductions going forward, will depend upon how well it performs with respect to future consumers and future patients. Moreover, the recent $400 MCCA premium rebate, touted by the insurance industry in the Andary case as a product of the new law, was not anything that was mandated by that legislation. Rather, it was likely the result of an independent decision by the insurance executives who run the MCCA to better leverage the industry’s position regarding the legal issues raised in the Andary litigation. In truth, such a rebate could have been made years ago, when knowledgeable observers warned that the MCCA was overfunded as a result of years of collecting unnecessarily high premiums.
In the end, the real significance of the Court of Appeals’ decision in Andary is its affirmation of the principle that it is not appropriate, in the name of lowering insurance costs for all, to take away from a few, those healthcare benefits they paid hard earned money to purchase. Simply stated, “robbing Peter to pay Paul” is not justice—it is fundamental injustice.
We are hopeful that the Michigan Supreme Court will, as did the Court of Appeals, embrace these important legal principles and affirm the landmark Andary decision.”
June 2022
CPAN, who was granted amicus curiae status by the Michigan Court of Appeals in the pending case of Andary et al v USAA Casualty Insurance Company et al, remotely attended the oral argument hearing held in that case today and noted afterwards that the three judge appellate panel was keenly aware of the great importance of the Andary litigation and paid close attention to the legal arguments of counsel.
In the Andary litigation, the Plaintiffs, supported by CPAN, strongly urged that it would be fundamentally illegal to enforce the medical benefit cuts recently enacted by the new no-fault legislation against catastrophically injured auto accident victims who purchased auto no-fault insurance policies and sustained their injury many years before the recent legislation was passed. The legal team representing Ms. Andary (George Sinas and Mark Granzotto) argued that the no-fault insurance policies purchased by the Plaintiffs in this litigation specifically required the payment of “all reasonable charges” for reasonably necessary medical care and, given that contractual right, insurers had the duty to pay those benefits to the Plaintiffs without regard to the recently adopted “government fee schedules” and the limitations on reimbursable family provided attendant care. The Plaintiffs urged the Court of Appeals to find that any such effort to apply these new benefit cuts to Plaintiffs injured prior to the effective date of the new law would constitute an illegal deprivation of the legally vested contractual rights of these Plaintiffs.
In that regard, George Sinas, lead counsel for the Plaintiffs, stated, “The central point in this entire litigation is the fact that long ago, the Plaintiffs in this case purchased auto no-fault insurance policies that would not permit the enforcement of the benefit cuts contained in this new legislation. In other words, these Plaintiffs purchased the contractual right to the payment of benefits without regard to these limitations and the insurance companies involved charged these Plaintiffs a premium to provide those benefits. Now the insurers contend they can deny payment of the benefits that they sold to these patients, while retaining the premiums they collected to pay them. That would be a classic example of governmental interference with private contract rights as well as a governmentally sanctioned windfall for auto insurers who would no longer have to pay benefits that they collected money to provide.”
The Court’s decision in this case will affect thousands and thousands of Michigan citizens who purchased no-fault insurance policies and were injured many years before these new laws were passed. There are approximately 18,000 of these patients who were catastrophically injured and whose medical expenses are now being reimbursed by the Michigan Catastrophic Claims Association (MCCA).
“So, we’re not dealing with litigation that is only going to affect a few people. On the contrary, the number of victims who will be severely harmed if such benefit cuts are allowed by the Court of Appeals, boggles the mind,” said Sinas. “Recently we’ve seen media stories about the famous Detroit Red Wing hockey player, Vladimir Konstantinov, who was catastrophically brain injured many years ago in a motor vehicle accident and will now lose essential in-home attendant care and thus may be forced to live in an institution. The sad thing is there are thousands of Vladi Konstantinovs whose tragic stories have not been publicized, but who are similarly experiencing the prospect of such frightening outcomes,” said Sinas.
CPAN President, Devin Hutchings, added further perspective to the importance of the Andary litigation when he said, “The issue of whether the benefit limitations enacted by this new law are good or bad, is not the issue in the Andary litigation. Whether those limitations will continue to be applied to accident victims injured in the future is a matter for the legislature. The issue in the Andary case is whether the medical benefits previously purchased by auto no-fault victims under policies issued many years ago can be snatched away from them in what would be an outrageous theft.”
It is not clear when the Court of Appeals will issue its decision. It could be weeks or months, predicted court observers. Regardless of the decision of the Court of Appeals in Andary, it is highly likely that the case will be appealed to the Michigan Supreme Court for a final determination.
August 2021
Defendants filed their Brief on Appeal with the Court of Appeals on July 26,
2021. Plaintiffs filed their Reply Brief on August 13, 2021. In addition to
the four amicus curiae briefs filed in support of Plaintiffs back in June,
four amicus curiae briefs in support of Defendants have been filed by the
City of Detroit; American Property and Casualty Insurance Association;
Insurance Alliance of Michigan/National Association of Mutual Insurance
Companies; and Department of Insurance and Financial Services. The briefing
stage is now complete. The next step is for the Court of Appeals to schedule
oral argument on these issues in the coming months. We will provide an
update as soon as oral argument is scheduled.
Plaintiffs-appellants’ brief on appeal
Plaintiffs-appellants’ reply to defendants-appellees’ brief on appeal
Rep. Julie Brixie and Rep. Andrea Schroeder amicus curiae brief
Court of Appeals
June 2021
Plaintiffs' Brief on Appeal in the Court of Appeals was filed on May 24, 2021. As in the trial court, Plaintiffs' Court of Appeals brief primarily focuses on the retroactivity issue, i.e. that the 56 hour per week limitation on in-home family provided attendant care and the 55% non-Medicare fee schedule should not be applied retroactively to accident victims injured prior to its enactment. Plaintiffs also argue against the future application of these two provisions based on equal protection and due process grounds.
In addition to Plaintiffs' brief, several organizations have filed amicus curiae briefs in the Court of Appeals in support of Plaintiffs. These include CPAN, MBIPC, and BIAMI. Additionally, Plaintiffs' lawsuit has garnered support from Michigan legislators. On May 27, 2021 Representatives Julie Brixie (D-Meridian Township) and Andrea Schroeder (R-Clarkston), filed an amicus curiae brief stating that they never intended the attendant care limitations and 55% fee schedule to have retroactive effect and that they do not support retroactive application of these provisions. This amicus brief was accompanied by a memo of support that is signed by 73 current and former legislators.
While it is significant to have support from so many legislators, this does not change the course of the lawsuit and it will continue to proceed in the normal and ordinary manner. Defendants' Brief on Appeal is due on July 26, 2021. Following this, other amici groups will have the opportunity to file briefs. It is anticipated that there will be several organizations that will file amicus briefs in support of Defendants. Once all briefs are filed, the Court of Appeals will schedule oral argument on the case. After oral argument, the Court of Appeals will issue a decision. This process will likely take several months. After the Court of Appeals issues a decision, the parties have the opportunity to try to appeal to the Michigan Supreme Court.
March 2021
Plaintiffs' motion to amend and motion for reconsideration were denied on February 18, 2021 so plaintiffs filed an appeal. Plaintiffs filed an appeal with the Court of Appeals on March 4, 2021. The parties are currently working on briefing the issues. All parties and amicus curiae groups will be filing their briefs within the next few weeks. The Court of Appeals will then likely hold oral arguments on the issues prior to making their decision. Updates will be provided as they become available.
March 2021
On March 4, 2021, the Plaintiffs filed an appeal of Judge Stokes’ decision to dismiss the case and it is currently pending in the Court of Appeals.
Ingham County Circuit Court
December 2020
On Nov. 13, 2020, the Ingham County Circuit Court issued an Order granting Defendants’ Motion to Dismiss on all counts. In summary, the court held that there was no retroactive interference with contracts because no-fault insurance is a highly regulated industry, thus contracts for no-fault insurance cannot be immunized against changes to the underlying law. The court further held that there was no infringement upon due process or equal protection rights because fundamental rights were not implicated, and the legislature had a rational basis in reducing insurance costs and fraud in enacting said limitations.
On Dec. 4, 2020, Plaintiffs (Andary/Krueger/Eisenhower Center) filed both a Motion for Reconsideration and a Motion to Amend Complaint. The basis for these motions was Plaintiffs’ request in prior briefing that should the court dismiss the constitutional claims, Plaintiffs should be allowed to amend their Complaint to add a breach of contract argument. This breach of contract argument is based on the case of Lafontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26 (2014), which stands for the proposition that the statue that was in effect at the time the contract was entered into controls the terms of the contract. Accordingly, Plaintiffs assert that the legislature cannot retroactively change the terms and the level of benefits they are receiving pursuant to the contractual agreements with their no-fault insurers. Plaintiffs bought no-fault policies with unlimited attendant care benefits and without the imposition of fee schedules. The premiums Plaintiffs paid were priced based on these levels of benefits. Now, the legislature is attempting to retroactively take away these benefits, resulting in a fundamentally unfair and inequitable windfall to insurers.
The next step is for the court to make a decision on our motions. A hearing is currently scheduled for Jan. 7, 2021. Ordinarily, defendants are not required to respond to a Motion for Reconsideration under the court rules. However, in this case, the court has ordered Defendants to file a response, which is due on Dec. 30, 2020. If the court denies our Motion for Reconsideration, we will have 21 days to appeal the decision to the Court of Appeals. If the court grants our Motion for Reconsideration, it will likely want more briefing on the amendment issue, which will keep this case in the trial court for a few more months.
Lawsuit seeks to declare key elements of Michigan’s auto insurance reform unconstitutional
In October of 2019, a 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 declaring portions of Michigan’s new auto insurance law as unconstitutional.
The 18-count lawsuit was filed by guardians of two catastrophically injured auto accident victims — along with the nationally renowned brain injury rehabilitation clinic Eisenhower Center — and names Citizens Insurance Company of America and USAA Casualty Insurance Company as the defendants. The victims, on whose behalf the lawsuit was filed, are Ellen Andary, of East Lansing, and Philip Krueger, of Ann Arbor.
The lawsuit primarily addresses two provisions — significant limitations placed on the right of survivors to receive reimbursement for in-home attendant care services provided by family members, and the non-Medicare 55% fee schedule that dramatically reduces the amount medical providers can be reimbursed by auto insurance companies for necessary care.
Dr. Andary described the law as “big government turning into Big Brother.”
“Catastrophically injured auto accident survivors, who have already been stripped of so much, will now be stripped of their right to privacy, as well,” he said. “We’re filing this lawsuit to protect the dignity and the rights of survivors like Ellen and my other patients.”
Showing the broad and devastating impact the new law will have on all aspects of healthcare in Michigan, several organizations—including CPAN, the Michigan Brain Injury Provider Council, the Brain Injury Association of Michigan, the Michigan State Medical Society, the Michigan Osteopathic Association and the Michigan Association of Chiropractors—have filed amicus curiae briefs with the court, outlining how patients and providers will be affected.
Read the news release about the oral arguments on July 22, 2020, and see below for much more information on each amicus brief.
Pictured is Philip Krueger and his family. (Courtesy Photo)
Pictured is Ellen Andary and family. (Courtesy Photo)
Meet Dr. Andary
Michael Andary
Dr. Michael Andary is a brain injury physician and a professor of physical medicine and rehabilitation at Michigan State University’s College of Osteopathic Medicine. He is the legal guardian for his wife, Ellen, who was legally incapacitated following a catastrophic auto accident caused by a drunk driver in 2014.
“This new law essentially means government can step in and determine who can come into my home and provide my disabled wife her needed around-the-clock care.”
Meet Attorney George Sinas
George Sinas
George Sinas serves as general counsel for CPAN and is the managing partner at the Sinas Dramis Law Firm. He is a personal injury attorney and is recognized as one of Michigan's foremost experts in auto no-fault law.
“The Michigan Legislature’s passing of this new, rushed law, is a stain on the legal and moral conscience of this great state.”
Coalition Protecting Auto No-Fault (CPAN)
“This law diminishes the level of care that many patients currently receive, which is unfair to those patients and is not necessary nor reasonable to achieve the stated goal of reducing premiums.”
“The retroactive nature of the law means that the care received by accident victims—many of whom will need that care and therapy for the rest of their lives—will be drastically limited and diminished.”
CPAN's Amicus Brief in Summary
Legal Issue of Interest to CPAN
The limitation on in home family provided attendant care and the non-Medicare 55% fee schedule retroactively interfere with the vested contractual rights and constitutional rights of motor vehicle accident victims and medical providers. These motor vehicle accident victims purchased no-fault insurance policies that provided for all reasonably necessary attendant care without limitation on the identity of the provider or number of hours. These motor vehicle accident victims also purchased policies that provided for reimbursement for all reasonable charges for reasonably necessary services, products, and accommodations for their care, recovery, or rehabilitation, without regard to any government imposed fee schedule. The price that these motor vehicle accident victims paid for their no-fault insurance premiums reflected this. The right to this unlimited attendant care and reimbursement without fee schedules vested at the time of these patients’ motor vehicle collisions.
Implications
The limitation on in home family provided attendant care infringes upon the privacy of motor vehicle accident victims by forcing them to allow strangers into their homes to provide them with intimate and personal care. This limitation is also detrimental to the health of these patients who often receive more efficacious care from family and friends with whom they have personal relationships with. This limitation is not rationally related to the overall goal of the no-fault system and the goal of no-fault reforms in keeping no-fault insurance costs down, as the cost of commercial care is greater than the cost of family provided attendant care. The non-Medicare 55% fee schedule also has severe impacts on motor vehicle accident victims and medical providers. Medical providers cannot afford to take a 45% pay cut and will be forced out of business, causing the destruction of businesses and a loss of jobs. This will impair accident victims’ access to medical treatment and leave them with nowhere to go. Because the no-fault amendments now impose such limitations, the nature and quality of care motor vehicle accident victims purchased under their no-fault insurance policies will be drastically diminished.
Brain Injury Association of Michigan
“The highly personal nature of attendant care and the importance of family involvement in a loved one’s rehabilitation over many years, will be severely compromised if patients are forced to deal with strangers.”
“Legislative changes to the law are typically done prospectively. However, the retroactive nature of the new no-fault law effectively breaches the contract of insurance between the insurer and its insureds, whose rates and subsequent home care structure were established by the previous payment of premiums. ”
BIAMI’s Amicus Brief in Summary
Legal Issue of Interest to BIAMI
The limitation on in home family provided attendant care retroactively interferes with the vested contractual rights and constitutional rights of motor vehicle accident victims. These motor vehicle accident victims purchased insurance policies that provided for all reasonably necessary attendant care without limitation on the identity of the provider or number of hours pursuant to the no-fault law at the time. The price of the premiums paid for this no-fault insurance reflected the fact that all reasonably necessary attendant care could be provided without limitation. The right to this unlimited attendant care vested at the time of these patients’ motor vehicle collisions.
Implications
The limitation on in home family provided attendant care has several severe implications for motor vehicle accident victims, particularly brain injury survivors, and the family members and friends who provide attendant care to these patients. This limitation forces patients to allow strangers into their homes to provide them with intimate and personal care. Especially in light of the current COVID-19 pandemic, forcing injured individuals to have a rotating stream of strangers come into their homes is particularly dangerous. These patients will often receive a lesser quality of care because the caregivers do not know the patient and have no personal relationship with him or her. Finally, this limitation will also make the cost of no-fault insurance more expensive because the rates for commercial attendant care are higher than the rates for family provided attendant care.
Michigan Brain Injury Provider Council
“We hope the courts will agree that the new no-fault law violates the due process rights of post-acute care providers because the mandated 45 percent reduction in our rates will not allow us to continue operating our businesses.”
“This change will have dire implications on thousands of individuals served throughout the state who will be denied access to the rehabilitation they need, forcing them into nursing homes and psychiatric facilities.”
MBIPC’s Amicus Brief in Summary
Legal Issue of Interest to MBIPC
The non-Medicare 55% fee schedule under the no-fault amendments that caps reimbursement for non-Medicare compensable services to 55% of what the provider was charging as of January 1, 2019 retroactively interferes with the vested contractual rights and constitutional rights of motor vehicle accident victims and medical providers. Medical providers, particularly post-acute rehabilitation providers, have a vested contractual right to be paid their reasonable and customary rates for services provided on behalf of an existing patient. That right vests before services are provided, expenses are incurred, or payment is owed.
Implications
By cutting reimbursement by 45% for services not covered by the Medicare program, it is nearly impossible for post-acute rehabilitation providers to continue operating in Michigan. This fee schedule effectively destroys an entire segment of the Michigan health care economy that was allowed to develop and flourish because of the no-fault system. This causes a great loss of jobs and forces out motor vehicle accident victims, many of whom have been living in post-acute rehabilitation facilities for decades, leaving them with nowhere to go and limited access to medical treatment. This fee schedule also deprives medical providers of their property rights by taking away their profits and ability to continue operating their businesses.
Michigan State Medical Society
“The inability to provide the care that patients need, resulting in the deterioration of their condition, will simply increase costs elsewhere in the system. This government interference could mean the difference between life and death for some accident victims.”
MSMS’ Amicus Brief in Summary
Legal Issue of Interest to MSMS
The non-Medicare 55% fee schedule that caps reimbursement rates at a percentage of what medical providers charged for services as of January 1, 2019 retroactively interferes with the vested contractual rights and due process rights of motor vehicle accident victims and medical providers, as well as equal protection rights of medical providers.
Implications
The result of this fee schedule is that different providers of the same services will be able to charge different rates for those services, and only those who set their fees with a profit margin of more than 45% in 2019 will be able to continue providing such services. This legislation rewards the behavior it meant to curtail by rewarding medical providers who can operate at a 45% pay cut. It impairs private contracts already in place between insureds and insurers and contracts between accident victims and their providers. The non-Medicare 55% fee schedule hinders physicians’ ability to prescribe services necessary to the patient’s care, recovery, and rehabilitation; interferes with the practice of medicine; and deprives providers of their livelihood.
Michigan Osteopathic Association & Michigan Association of Chiropractors
“The truth is, some services will no longer be available to victims of automobile accidents because the 55% fee schedule will cause some providers to go out of business. This means that numerous catastrophically injured patients will lose the quality of care they need. ”
“While the intended purpose of the 55% fee schedules under the new law was to lower auto insurance premiums, they will have little chance of achieving that goal. Instead, those fee schedules will have devastating effects on patients as well as the providers of certain medical and chiropractic services.”
MOA & MAC’s Amicus Brief in Summary
Legal Issue of Interest to MOA & MAC
The non-Medicare 55% fee schedule that caps reimbursement rates at a percentage of what medical providers charged for services as of January 1, 2019 retroactively interferes with vested contractual rights and due process rights of motor vehicle accident victims and medical providers, as well as equal protection rights of medical providers.
Implications
The result of this fee schedule is that some services will no longer be available to motor vehicle accident victims because providers will not be able to treat patients at rates that are below their cost. Moreover, there will be substantial interference with the private contracts between patients and their providers. This legislation will also deprive many providers of non-Medicare compensable services of their livelihood because they will be unable to stay in business at these unsustainably low reimbursement rates.
Connect with us
We are working diligently to keep the public informed. Help us rally support around the lawsuit and stay up-to-date with auto insurance news by following our Facebook.