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After a complicated legal process, you and your family may receive a settlement for a nursing home abuse case.

Compensation isn’t about taking home a large check, it’s about receiving acknowledgement of wrongdoing and compensation for the harm done to your loved one, but, your family may not be the only recipients of that settlement.

If Medicare pays for part or all of your loved one’s care, it may be entitled to part of that settlement. Why can Medicare recoup part of the settlement? How much of the settlement will go to Medicare? Knowing the answers to these questions can help prepare you for the settlement process.

Understanding Medicare benefits

Medicare is health insurance provided by the federal government, largely to people who are 65 or older. If you’ve worked and paid Medicare taxes for at least a decade, you can sign up to receive Medicare benefits when you turn 65. People with disabilities younger than 65 and those with permanent kidney failure may also be eligible for Medicare. Arizona currently has over 1 million Medicare beneficiaries.

Medicare comes in two parts

  • Part A, which covers hospital care
  • Part B, which covers medical care

Medicare typically does not cover long-term care in nursing homes, but that doesn’t mean someone in a nursing home can’t use their Medicare coverage for other things.

For example, elderly nursing home patients often still need medical supplies and hospital care, which do fall under Medicare coverage.

Pursuing an abuse case

Nursing home abuse can take many different forms. In many cases, elderly people cannot speak for themselves or protect themselves. This leaves them at risk for neglect, physical abuse, sexual abuse, and financial manipulation.

Depending on the situation, it may not be readily apparent that someone is being abused in a nursing home, particularly if they cannot communicate with you. Additionally, a 2019 report found that the Arizona Department of Health Services has failed to investigate and resolve a number of nursing home abuse claims.

If you do discover abuse, managing your emotional response can be tough. You will probably feel angry, horrified, and maybe even guilty. Pursuing an abuse case can make these feelings even more complicated. No matter how you feel, you and your family have the right to seek justice.

While you are navigating the legal process, your loved one will likely need care to recover from injuries related to the abuse. This means Medicare will still be paying for a portion of the healthcare services made necessary by the nursing home’s negligence.

Determining compensation

Any compensation for a nursing home abuse case is either determined by:

  • Settling out of court
  • Going to trial and winning your case

The exact dollar amount of a nursing home abuse settlement will be determined by three different kinds of damages:

  1. Economic. Nursing home abuse can lead to economic damages, like bills for additional care. Determining this element of a settlement is relatively straightforward.
  2. Pain and suffering. Settlements can also include compensation for the pain and suffering of the victim. Quantifying this type of damage is not as straightforward.
  3. Punitive. Neglect or intentional harm can result in punitive damages, additional money the defendant must pay as a part of the settlement.

The damaged parties are not the only ones to suffer financial losses. When Medicare pays for care that either results in the harm of a patient or pays for care necessary as a result of harm, they are suffering a financial loss as well.

Distributing the settlement

After filing a lawsuit and receiving a settlement, you will probably want to know how the proceeds are distributed. In most cases the settlement will be divided between the:

  • Damaged parties. This is the reason you are pursuing an abuse case against the nursing home. Your family member deserves compensation for the harm they have suffered.

The plaintiff of a lawsuit is a recipient of the settlement. If the family member who suffered abuse is alive and physically and mentally able, he or she can serve as the plaintiff in the abuse case. If the family member is incapable, a child or spouse can sue and accept the settlement on their behalf.

If your loved one dies as the result of abuse, the surviving family members have the right to pursue a wrongful death case. In this case, the family members are the plaintiffs and entitled to compensation.

  • Legal team. If you win or settle an abuse case, your lawyer may have negotiated a percentage of the settlement or a certain dollar amount to pay for their services and fees.

Why can Medicare recoup part of the settlement?

It is possible some of the settlement money will need to go to Medicare.

Medicare may have been paying for hospitalization and other healthcare services an elderly person needs as a result of nursing home injury or neglect. As such, Medicare has a right to reimbursement.

What is a lien?

Federal law, as well as Arizona state law, allows Medicare to pursue something called a lien on all billing related to the injury. This means Medicare is entitled to reimbursement for those costs. That reimbursement comes from the party responsible for the damages, for example the nursing home or other defendants in the abuse case.

The defendant is responsible for paying any settlement reached, whether outside of court or as determined by a judge and jury. As such, Medicare can recoup its costs from that settlement amount.

The same laws also apply for Medicaid. If Arizona Health Care Cost Containment System (AHCCCS), the state’s Medicaid program, paid for any of the care your loved one needed as the result of abuse, AHCCCS has the right to collect reimbursement.

Calculating Medicare’s portion of the settlement

Medicare and Medicaid are responsible for proving how much they are owed and your lawyer will help you understand the breakdown of any potential settlement.Your lawyer’s team will work with the Medicare Secondary Payer Recovery Portal (MSPRP) to keep Medicare updated on the progress of your case. Medicare will provide conditional payment information on any payments the payer finds to be related to the abuse case.

How much of the settlement will go to Medicare?

Once the case settles, your lawyer will communicate the settlement amount to MSPRC. With all of the necessary information in hand, MSPRC will release a final statement on the amount Medicare is owed from the settlement.

Medicare settlement FAQs

Experiencing the aftermath of nursing home abuse is difficult for both victims and their families. You are upset that any abuse was allowed to happen and concerned about the wellbeing of your loved one going forward. You are also determined that the parties responsible for the abuse be held accountable for their actions. It is natural to have questions as you try to move forward.

Who has Medicare benefits?

Medicare provides health insurance coverage for people who are 65 and older. Most people who are placed in short-term or long-term nursing home care in this age group. If your loved one is 65 or older, Medicare is likely covering some portion of their healthcare.

What does Medicare have to do with my family’s nursing home abuse claim?

While Medicare does not cover the bills from the nursing home, your loved one may need to undergo care outside of a nursing home following abuse or neglect.

The result of physical abuse, sexual abuse, and neglect can have a serious impact on an elderly person’s health. They may need to be hospitalized, undergo surgery, or receive other supportive healthcare. Medicare has the right to reimbursement for any care directly related to the abuse that it covers.

Can I dispute a Medicare lien on my settlement?

The prospect of giving up a portion of your settlement to Medicare can be frustrating. After legal fees and the Medicare lien, how much is left over? Families often count on that settlement money to continue paying for the care their elderly relative needs. In the case that a loved one dies as a result of abuse, the family is worried about funeral costs and settling the estate.

While Medicare has a legal right to reimbursement, you and your lawyer also have the right to review the claims and make a dispute. If Medicare includes a claim not related to the abuse case, your lawyer can use the MSPRP to file a dispute.

You can dispute claims included in the initial conditional payment information released. You can also appeal MSPRC’s final decision or request a waiver.

When does Medicare receive the money from my settlement?

If Medicare has successfully demonstrated the value of its lien on your settlement, it will send a final demand letter. Medicare will need to receive payment within 60 days of the dated letter. If payment is not received within this period, interest on the final amount owed will accrue.

The ins and outs of dealing with Medicare during a nursing home abuse case are complex. The right lawyer will help you understand what to expect from your settlement and how your loved one’s Medicare benefits will affect the final amount.

Sources:

  1. https://www.medicare.gov/what-medicare-covers/what-part-a-covers/medicare-part-a-coverage-nursing-home-care
  2.   https://www.medicare.gov/what-medicare-covers/what-part-a-covers/how-can-i-pay-for-nursing-home-care
  3.   https://www.medicare.gov/supplements-other-insurance/how-medicare-works-with-other-insurance
  4.   https://www.medicare.gov/what-medicare-covers/what-part-a-covers/reporting-resolving-nursing-home-problems
  5.   https://www.nursinghomeabuse.org/nursing-home-abuse/types/
  6.   https://www.nursinghomeabusecenter.com/nursing-home-abuse/signs/
  7.   https://www.nursinghomeabusecenter.com/compensation/case-values/
  8.   https://www.azcentral.com/story/opinion/op-ed/2019/10/09/arizona-nursing-home-abuse-claims-no-surprise-hire-more-investigators/3841310002/
  9.   https://www.azcentral.com/story/news/local/arizona-health/2019/09/26/arizona-failed-investigate-nursing-home-complaints-report-finds-auditor-general-dhs-cara-christ/3780677002/
  10. https://www.azauditor.gov/reports-publications/state-agencies/health-services-department/report/arizona-department-health-6
  11. https://www.nursinghomeabusecenter.org/nursing-home-abuse-lawyer/arizona-lawyer/
  12. https://www.hg.org/legal-articles/your-nursing-home-neglect-claim-settlement-and-public-aid-and-medicare-22341
  13. https://www.mcrazlaw.com/hospital-medicare-liens/
  14. https://www.nursinghomeabusecenter.com/compensation/settlements/
  15. https://www.caregiver.org/arizona-health-care-cost-containment-system-ahcccs-medicaid
  16. https://www.nursinghomelawcenter.org/news/nursing-home-abuse/is-medicare-entitled-to-receive-a-portion-of-my-settlement-from-a-nursing-home-case/
  17. https://www.grayandwhitelaw.com/blog/reimbursing-medicare-out-of-nursing-home-abuse-settlement.cfm
  18. https://www.kytrialfirm.com/product-liability/medicare-tips-for-attorneys/
  19. https://practice.findlaw.com/practice-guide/how-to-deal-with-medicare-liens-in-personal-injury-cases.htm
  20. https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/MSPRP/Downloads/Disputing-a-Claim.pdf
  21. https://www.cms.gov/Medicare/Coordination-of-Benefits-and-Recovery/Beneficiary-Services/Medicares-Recovery-Process/Downloads/Conditional-Payment-Letters-and-Notices-Beneficiary.pdf
  22. https://www.hhs.gov/answers/medicare-and-medicaid/who-is-elibible-for-medicare/index.html

 

  1. https://www.medicare.gov/sign-up-change-plans/how-do-i-get-parts-a-b

24. http://www.nursinghomeabuseguide.org/legal/nursing-home-abuse-settlements

Our experienced attorneys offer comprehensive guidance on all personal injury matters by phone or video conference call.

Our team of lawyers work closely with their injury clients across Arizona, communicating clearly whilst offering reassurance and empathy through an often very difficult and emotional process. During the free consultation, our lawyers will discuss your concerns before creating a comprehensive plan for you, while also assessing the strength of your claim.

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