I. ANDARY UPDATE (April 11, 2025)

Folks, we have a welcome update to report. We recently reported that the Department of Insurance and Financial Services (DIFS) has taken the position that the Andary decision did not apply to Medicare reimbursements under the new section 3157(2). We reported that this position was undergoing challenges in our courts. We are now pleased to report that the Court of Appeals has disagreed with DIFS in a published decision. In Fremont Ins Co v Lighthouse Outpatient Center et al, Court of Appeals #370500 (April 11, 2025), where Miller & Tischler partner Milea Vislosky represented the appellant Lighthouse, the Court held:

“DIFS misinterpreted the holding in Andary. The reasoning of Andary is not limited to merely reimbursement issues arising under MCL 500.3157(7) (capping reimbursement for services not covered by Medicare) and (10) (limiting reimbursable hours for family-provided attendant care. As the parties have argued, the same reasoning set forth in the Supreme Court’s decision in Andary – as to subsections (7) and (10) – is applicable to the entirety of MCL 500.3157, as amended, with respect to pre-amendment PIP claims.”

So at this juncture, we now have a truly bifurcated system: those who were injured before the effective date of the new law (June 11, 2019) will generally have benefits governed by the old reasonable/customary standard. Those who were injured after June 11, 2019 will be governed by the fee caps in the new system. We hope that DIFS will accept this decision and put the issue to bed. 

It is well known that the Andary decision held that the 2019 reforms do not apply to people who were injured before the effective date of the new law (June 11, 2019). Unfortunately, our Insurance Director issued a bulletin in January 2024 (DIFS bulletin 2024-06-INS, linked here: https://www.michigan.gov/difs/-/media/Project/Websites/difs/Bulletins/2024/Bulletin_2024-06-INS.pdf?rev=bb0ecb24ce164982afd274e779e1f9ef) holding that Andary does not apply to the Medicare fee caps under no-fault section 3157(2)-(6). Not surprisingly, this bulletin has provoked litigation. In fact, several insurance companies have sued DIFS, seeking to confirm that Andary does indeed cover the Medicare fee caps. At this juncture, the Court has agreed with the insurers and against DIFS, holding that Andary does apply to the Medicare fee caps. We believe this is the correct answer and will be affirmed on further appeal.

II. NON-MEDICARE FEE CAP INFLATION ADJUSTMENT

The non-Medicare fee cap became effective as of July 2, 2021. It started at 55% of the provider’s charge description as of January 1, 2019. The rate declined over the next two years so that the rate as of July 2023 and forever thereafter is 52.5%. However, the statute provides for a cost of living escalator. The following chart shows the effective rate of the non-Medicare fee cap:

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MILLER & TISCHLER NEWS



First, Miller & Tischler is proud to announce that our partner Kevin McNeely has been awarded the Most Respected Advocate award. This award is given annually by the Michigan Defense Trial Counsel to the plaintiff attorney who they most respect. We are proud that Kevin McNeely is that attorney for 2025. In a recent trial, Kevin also received a verdict of $468,000 against Auto Owners Ins. Co. on a claim for hospital expenses for a young lady who suffered quadriplegia in a car crash. The auto insurer denied coverage, claiming that the patient was not domiciled with her mother (the insured person under the policy). The jury found that despite the daughter’s temporary residence in an apartment, her true “domicile” was at her mother’s house. She was thus eligible to claim medical benefits from her mother’s policy. Interest was also awarded and a motion for attorney fees will be filed.

Miller & Tischler is also proud to announce that our partner Martin Hogg has been appointed by the Michigan Supreme Court to serve on the Committee on Model Civil Jury Instructions.

Finally, we are delighted to announce that attorney Haley Wehner has joined our team. Haley L. Wehner is a graduate of Capital University and Michigan State University College of Law. Prior to joining Miller & Tischler, P.C., she gained experience clerking for a personal injury firm in Lansing, served as a Notes and Comments Editor for the Michigan State International Law Review, and most recently worked as an attorney representing injured plaintiffs across Michigan. Welcome Haley!