BY:  

 

Morgan Indek | Partner

 

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By special request by one of my clients, this week’s tip is on Attendant care.  Attendant care is covered under 440.13(2)(b) (below).

Here’s a couple of tips:

• If you have a date of accident prior to 10/1/2003, you still use the current statute below.  So the new law on attendant care applies to old cases per Socolaw v. Flanigans Enters, 877 So.2d 742 (Fla. 1^st DCA 2004).

• There must be a prescription for the attendant care, and no retroactive scripts are valid BUT….per the caselaw, don’t “hide behind a willful wall of ignorance”.   If you know the claimant is in need of attendant care you have a duty to provide it, or clarify/contact the doctor and get a script.

• A doctor can prescribe up to 24 hours a day of care, but a family member or combo of family members can only be paid for a maximum of 12 hours a day.

• If the family member is not working, they are paid the FEDERAL minimum wage, not the Fla min wage. The federal minimum wage for covered nonexempt employees is $7.25 per hour effective July 24, 2009.  

• If the family member is working, you pay them what they get paid at work, but it is capped at the going rate for professional attendant care.

• I recommend you have the family attendant care provider complete daily logs, sent to you once a week or every two weeks, showing what activities were done.  In case there is an issue of misrep potentially, have the claimant sign the logs and have the fraud statement on the logs.

• Attendant care is a medical benefit.  There are no penalties and interest due on awards of past due attendant care.  Williams v. Amax Chemical Corp., 543 So.2d 277 (Fla 1^st DCA 1989). 

440.13(2)(b) The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or carrier shall not be responsible for such care until the prescription for attendant care is received by the employer and carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required. A prescription for attendant care shall not prescribe such care retroactively. The value of nonprofessional attendant care provided by a family member must be determined as follows:

1. If the family member is not employed or if the family member is employed and is providing attendant care services during hours that he or she is not engaged in employment, the per-hour value equals the federal minimum hourly wage.

2. If the family member is employed and elects to leave that employment to provide attendant or custodial care, the per-hour value of that care equals the per-hour value of the family member’s former employment, not to exceed the per-hour value of such care available in the community at large. A family member or a combination of family members providing nonprofessional attendant care under this paragraph may not be compensated for more than a total of 12 hours per day.

3. If the family member remains employed while providing attendant or custodial care, the per-hour value of that care equals the per-hour value of the family member’s employment, not to exceed the per-hour value of such care available in the community at large.

Thanks, and let me know if you have any questions (click below to contact).
Morgan Indek | Partner