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If my mother’s nursing home abuse injuries were paid through can we file a claim?

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If you’re considering pursuing a case for nursing home abuse injuries, you may be wondering if Medicare insurance will cover the medical costs, and if so, if you’ll need to pay them back.

In most cases, the answer is yes, but there are some exceptions and it doesn’t mean you’re not able to proceed with an abuse case.

The injury attorneys at Phoenix Accident and Injury Law Firm near you have significant experience in helping clients who have been a nursing home abuse victim.  Our offices are conveniently located in nearby ChandlerPeoria, and North Phoenix, and we can meet in-person at our nearby offices, over the phone, or video call.  You can contact us for a free consultation, or read on to find out more. 

By the way, we will also help with other problems that have cost you sleep, like finding a nearby doctor who can help you or recommending you to temporary or long-term care options. You and your family’s’ safety and health are our top concern, and even the best legal team isn’t good enough if your quality of life isn’t sustainable while justice and compensation are on the way. The whole point of legal action is to regain quality of life, so we help you long-term as attorneys and short-term as your go-to people. Our familiarity with the local Phoenix courts makes us confident that we can help you get the best settlement possible.

To figure out how the nursing home you have chosen for your family is rated and to see if the home has any prior violations, check out our nursing home index. We’ve compiled all of the nursing homes in Arizona as well as their health code reports.

Additionally, take a look at our Nursing Home Glossary– an index of important words you need to know in a nursing home abuse case and their definitions.

If you are unsure whether or not you can afford an attorney, don’t worry. We only get paid when you settle. Check out our Attorney Fees Calculator to find out more.

Understanding how Medicare works can be confusing at the best of times, our article explains how Medicare relates to nursing home abuse claims and what costs they might be able to recoup from any potential settlement you’re granted by the court.

Nursing homes and CMS compliance

According to the Centers for Medicare and Medicaid Services (CMS), the state leads the certification process and works in conjunction with state regulatory bodies.

The CMS website states:

“Skilled nursing facilities (SNFs) and nursing facilities (NFs) are required to be in compliance with the requirements in 42 CFR Part 483, Subpart B, to receive payment under the Medicare or Medicaid programs. To certify a SNF or NF, a state surveyor completes at least a Life Safety Code (LSC) survey, and a Standard Survey.”.

Nursing homes may face a number of punitive consequences if they are not in compliance, including:

  • Fines
  • Having their Medicare / Medicaid funding revoked
  • Corrective procedures
  • Refusal to renew license

It is this obligation to comply that should, at least in theory, prevent abuse from occurring, but unfortunately nursing home injuries are still far too common.

Nursing Home Abuse Justice estimates that there are 5 million elder abuse cases annually, and hundreds of thousands of complaints against nursing homes are filed every year.

What does Medicare pay for in nursing homes?

Although some public funding is available to cover long term care homes, basic nursing home services (feeding, bathing, dressing) are considered “custodial services,” and are generally not covered by Medicare.

However, other treatment and medical support that requires skilled medical staff can be covered in some instances. Here’s the basic breakdown of Medicare coverage:

  • Medicare part A covers up to 100 days in a skilled nursing facility, lab tests, surgery.
  • Medicare part B covers doctors visits and other non-hospital health care expenses.
  • Medigap supplements via private insurance do not cover long term care directly, but may help to cover some basic medical costs.

Medicare does not cover long term care, dental care, eye exams, foot care, or some other extraneous costs.

These rules will generally apply whether a person is in the nursing home or not.

In the case that long term care is required as a result of nursing home neglect or abuse, Medicare may not want to cover this, but you may be within your right to pursue coverage, depending on the details of the case.

Determining whether or not something “should” be covered can be a good reason to consult a lawyer, especially in light of an abuse allegation.

How is Medicare involved with nursing home abuse cases?

Generally nursing homes are not responsible for tracking Medicare benefits put towards caring for a particular patient, but they must offer consistent and regular services to ensure high quality of life. This includes the right to:

  • Be free from all forms of abuse and neglect
  • Have privacy
  • Refuse any treatment
  • Report abuse
  • Be kept informed  about their health status

As far as getting coverage goes, the bottom line is that your loved one should get Medicare coverage in accordance with the plan that they are on, no matter what type of injuries occur in the home.

The abuse claim will more likely involve the home care company directly, rather than insurers.

Abuse claims and settlements

It can be difficult to know the root cause of abuse or neglect in any case. This is only one of many reasons you should hire a qualified legal representative to assist you with your case.

The way the trial progresses depends on the cooperation of the defendants, for instance, through the trial hearing process.

If your mother, father or loved one suffered injuries as a result of abuse that were then treated and paid for by Medicare then they may be able to reclaim the cost from any settlement you receive.

Your lawyer will be able to help you wade through Medicare paperwork to understand the amount of Medicare reimbursement that will need to be paid back after the settlement.

It’s important to note that the settlement amount will consist of various types of damages, and will incorporate other, non-economic variables such as emotional pain and suffering.

It is possible to reach a substantial settlement in nursing home neglect or abuse cases. But because each case is so different and complex, it is difficult to determine ahead of time without a thorough investigation and gathering of evidence.

And it’s important to note that, depending on the contract, most nursing homes will push for settlement before anything goes to court.

It’s very important to report elder abuse so keep all records, all evidence, all paperwork — anything that could be used as evidence will be important for the rest of the claim and to build a case, including anything to do with private insurance and Medicare.

Will Medicare expect a portion of my settlement back?

In accordance with federal laws, there is a Medicare/Medicaid lien on negligence injury cases.

This means that, if you reach a settlement, Medicare and Medicaid are entitled to reimbursement if a third party caused the injury.

If the resident needed hospital care in relation to injuries sustained at the nursing home, these should be covered by Medicare.

Per 42 C.F.R. §411.24, the CMS will cover any medical costs necessary, and have a legal right to ask for reimbursement so long as a settlement has been reached from the third party or the person in receipt of payments from the third party. This is known as a Medicare lien.

Your attorney will help you to understand the terms of the payment, which benefits Medicare covered, and how much Medicare should receive.

The CMS demand letter

Once Medicare learns of a settlement case, they will send a demand letter to the beneficiary and the entity who is liable, for reimbursement.

Interest will begin accruing on the debt at the date of this demand letter.

The letter will indicate the exact amount owed and the right steps for paying off the debt, and Medicare does take into account the claimants other expenses such as legal fees (Per §411.37)

Anyone who officially receives this letter has the right to an appeal, for instance, if a debtor believes there has been an error, they can appeal.

In some circumstances (such as financial hardship), your lawyer be able to help you negotiate repayment down or have it waived.

You can find out more about the CMS demand letter on the CMS website.

Building a nursing home abuse case

As work towards a settlement or trial for a nursing home abuse claim, refer to Arizona legislation (A.R.S.) section 46-455: damages for pain and suffering, which states:

“A person who has been employed to provide care, who is a de facto guardian or de facto conservator or who has been appointed by a court to provide care to a vulnerable adult and who causes or permits the life of the adult to be endangered or that person’s health to be injured or endangered by neglect is guilty of a class 5 felony.”

The claim will likely end up incorporating different charges and may even be claimed against multiple entities.

Medicare coverage and reimbursement is just one portion of the claim and pain and suffering will make up part of the amount you receive for a settlement – it’s therefore unlikely your full settlement will be reclaimed by Medicare.

It’s important to note that the settlement payment will be based on different types of damages, including, for instance, punitive damages, depending on what the charges are.

How can I get help with a nursing home abuse or neglect case?

If you believe that nursing home abuse has taken place against a loved one, you should report this to Adult Protective Services (APS) and the Arizona Long-Term Care Ombudsman.

If you’re considering legal action against a nursing home, one of our compassionate attorneys can help you determine the best course of action.

If you have a case, we will work with all parties through the settlement process to get you the compensation you deserve.

We’re here for you. Call us today and find peace of mind.


What is a conditional lien for Medicare? 

A conditional lien is when Medicare covers injuries but expects that money to be reimbursed at the time of settlement.

What happens with Medicare in a nursing home injury lawsuit? 

Medicare coverage should continue for all hospital-related injuries (and other care) per the normal policy, whether the nursing home is deemed liable or not.

What if my settlement offer is too low? 

Any settlement suit is going to be difficult, and a qualified attorney will be there managing the negotiations for you.

How much will Medicare take from my settlement?

Medicare will expect reimbursement for all injuries and costs which it covered in relation to the injury or accident. The exact amount will depend on the case details. Your settlement amount should also incorporate expenses accrued as a result of emotional trauma. These costs can be hard to estimate but a qualified attorney will work on your behalf to find the best solution.

Get Help Now

Our team of abuse attorneys is dedicated to seeking damages on behalf of those family members who are being abused and help you find better accommodations for them in the nearby area. We’ve worked on a number of nursing home abuse cases previously in your area and take the time to understand the family’s concerns as well as the situation they believe their loved one is in.

At Phoenix Accident and Injury Law Firm near you, we have more than 15 years of experience helping clients obtain compensation for their and their loved one’s personal injuries, including those from nursing home abuse in the Phoenix area. When you’re ready to talk, please contact our office to arrange a free initial consultation by phone or at our Chandler office, conveniently located near you.

If you or a loved one has been the victim of nursing home abuse, contact Phoenix Accident and Injury Law Firm in nearby Chandler, AZ to speak with an experienced personal injury attorney. We provide personal injury legal services to clients in your area including ChandlerGilbertMesaScottsdale, Tempe, and Peoria.