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Attendant care is one of the benefits in the statute that has many pitfalls and nuances that often lead to frustration by clients and claims adjusters. The statute is below.
A few key points:
- There must be a recommendation/prescription from a doctor with details about “the time periods for such care, the level of care required, and the type of assistance required”. Technically, the script cannot be retroactive, but there is caselaw that says the E/C cannot hide behind a “willful wall of ignorance” and not provide attendant care when they know it is needed. We should proactively ask the doctor whether it is needed if it is obviously needed.
- What rate do you pay a family member per hour for performing the attendant care? Well if they are unemployed or if they don’t have to miss work to provide the attendant care, we pay the FEDERAL minimum wage, which believe it or not as of today is still $7.25 an hour.
If the family member does have to leave work, the hourly rate is what they make at work, up to and capped at the amount professional attendant care would cost.
The combo of all family members cannot exceed 12 hours a day (paid).
- Family members providing attendant care is always ripe for shall we say, taking advantage. I have seen cases where surveillance reveals the family member not at home at all, etc…Well, its not misrep by the claimant at that point because the funds are being paid to the family member. To combat this, I would recommend we require attendant care logs with the claimant’s signature and the fraud statement (of course provided the claimant is capable of signing).
It may be more expensive up front, but we can always insist on professional attendant care. It does remove the incentive to push for extended care.
440.13(2) (b)1. 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:
a. 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.
b. 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.
c. 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.
2. The employer or carrier may use a nurse registry licensed pursuant to s. 400.506 for the placement of authorized compensable attendant care services.
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And if you want to receive our GA Tips of the week, please contact my colleague John Fennelly jfennelly@eraclides.com.
Sincerely,
Morgan Indek | Managing Partner