This chapter on paying the bills is excerpted from Garry Prowe's book, Successfully Surviving a Brain Injury: A Family Guidebook.
In 1997, Garry's wife, Jessica, sustained a severe brain injury in an automobile crash. "At the time, I spent way too much time accumulating the information I needed, not only to understand the medical aspects of Jessica's brain injury, but also to handle the myriad insurance, financial, legal, personal, and family issues that accompany a serious blow to the brain. I recognized the need — that stil exists today — for a book that comprehensively addresses the wide variety of issues families face in the first few months after a brain injury.
"To research this book, I assembled a panel of more than 300 survivors, caregivers, and medical professionals who resonded to my email questions and reviewed portions of my writing.
"For us, this project is a labor of love. All profits fromt he sale of this book will be donated to brain injury organizations."
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If you haven’t already begun thinking about your household finances, now is the time. You need to minimize the amount of money going out for medical expenses and maximize the amount coming in through disability pay. To accomplish this, you may want to hire an attorney. This chapter helps you sort through these issues.
When it comes to treating survivors of a brain injury, our health care system is unkind and shortsighted. The medical costs of recovery and rehabilitation can be astronomical. A patient with a severe brain injury and her health insurer easily can spend millions for her care. Acting early to understand the costs you are facing and the insurance benefits available to your survivor may help you avoid financial distress.
Health insurance — if you have it — generally covers much, if not most, of a survivor’s medical care during the acute stage of recovery. Then, it gets tricky. To recover well, every survivor of a serious brain injury must undergo extensive rehabilitation. This includes the standard physical, speech, occupational, and neuropsychological therapy, plus the newer cognitive rehabilitation.
In Confronting Traumatic Brain Injury: Devastation, Hope, and Healing — a forceful indictment of government, insurance, and medical policy regarding brain injury — William J. Winslade writes that most survivors do not receive adequate rehabilitation. This is shortsighted, he argues, since “a relatively few dollars spent on rehabilitation could make the difference between a life of dependency and one of relatively full function.”
With their eyes on the bottom line, health insurers limit what they pay for rehabilitation, both inpatient and outpatient. They typically pay for just two to six weeks of inpatient rehabilitation. Even worse, they sometimes insist that inpatient rehab be completed within a certain period of time, within ninety days of the injury, for example. This can be a big problem if your patient is slow to emerge from her coma.
With outpatient rehabilitation, health insurers usually cap the number of reimbursable physical, speech, and occupational therapy sessions at twenty-five to fifty per year or, even worse, per injury. With cognitive rehabilitation, they are even stingier.
The impairments most disabling to most survivors of a brain injury are deficits in attention, concentration, memory, problem-solving, and decision-making. Cognitive rehabilitation is the best way to remediate these complaints. Insurance companies, however, often deny payment, claiming that there is no evidence that cognitive rehabilitation is effective. Recent research, however, has concluded otherwise and the Brain Injury Association of America is leading the fight to have cognitive rehabilitation recognized by the insurance industry as standard, reimbursable treatment for a brain injury.
Many health insurance policies also have lifetime benefit caps, such as $1,000,000, that are easily exceeded with a serious brain injury. Caregivers often find that just when their survivor is benefiting the most from rehabilitation, the insurance company says, “No more.”
Every rehab program has a case manager who negotiates with the health insurer over the amount of reimbursable services. Your survivor is best served if the case manager at the rehabilitation facility you select has many years of successful experience working with health insurers.
- If you fear that your health insurance benefits may be lacking, consider these nine ways to maximize them:
- If you have not already informed your survivor’s health insurer about her injury, do it now.
- If you have not been assigned a case manager at the hospital or rehab facility, ask for one.
- Cultivate a good working relationship with this person.
- Review your policy carefully, or
- Have an insurance expert, an independent case manager, or an attorney who specializes in personal injury litigation review your policy.
- Ask about extra-contractual or going-out-of-contract exceptions that may be mutually beneficial to insurer and patient. For example, all parties involved may agree that it’s best to cut short inpatient rehab provided the insurer picks up the tab for seventy-five, rather than fifty, annual outpatient rehab sessions. Be sure to get any extra-contractual agreements in writing.
- Be sure your doctors are documenting all progress in your family member’s condition, even the tiniest. Health insurers are quick to stop payment if the patient is not progressing.
- If you feel your insurer is not treating you fairly, file an appeal with the company.
- If your appeal is denied, speak to an attorney.
When your health insurer says, “No more,” check out these potential sources of financial assistance for your medical bills:
- Medicaid, if your income and financial assets are small (See page 120.)
- Hospital patient assistance programs for people with low incomes: Talk to the hospital billing department. They may work with you to establish a payment plan you can afford.
- Medicare, if your survivor qualifies for Social Security Disability Income: Medicare benefits, however, don’t begin until two years after the injury. (See page 121.)
- Auto insurance, if the injury was the result of a car accident
- Workers’ Compensation, if the injury occurred at work (See page 132.)
- Homeowners insurance, if the injury occurred at your house or someone else’s
- If it’s possible someone other than your survivor was responsible for the injury, see an attorney.
- State programs, such as:
- Brain injury trust funds
- Occupational and vocational rehabilitation services
- Crime victim’s compensation
- Medical assistance
- Developmental disabilities for children
- A high risk insurance pool for uninsurable people
- Note that every state is different. For information about programs in your state, contact your state brain injury association (see page 234).
- Tell your doctors you’re having financial problems. They may give you a break on their fees.
- Surf the Web for federal, state, and local government assistance programs. Try www.GovBenefits.gov.
- Apply for assistance from charitable and civic organizations.
- Follow the example of many brain injury families who have had raffles, yard sales, car washes, bake sales, road races, and concerts to raise funds for their survivor’s medical expenses.
- Finally, don’t forget that your medical expenses may be tax deductible.
Medicaid is a joint federal and state health insurance program that assists low-income people who do not have health insurance or who have exhausted their benefits. You are eligible for Medicaid if you meet certain financial requirements. Here’s what you need to know:
- Medicaid rules are complex and they change frequently.
- Each state, within broad national guidelines, establishes its own eligibility criteria: the type, duration, amount, and scope of the medical services reimbursed; and the individual’s co-payments.
- The eligibility requirements for Medicaid include the survivor’s age, the amount of her income and financial assets, and whether she is a citizen or a lawfully admitted immigrant.
- The applicant must have few financial assets. A married couple may have approximately $2,000 to $5,000 in savings. Their home and one vehicle are exempt.
- To apply for Medicaid, contact your local or state government Medicaid office. See the blue pages of your telephone directory.
- Apply as soon as possible; approval takes a long time.
- For help with your application, you may want to hire an attorney, a case manager, or other professional with Medicaid expertise.
- Some states have additional “state-only” programs that provide medical assistance for certain low income people who don’t qualify for Medicaid.
- Since most states must balance their books, Medicaid services—the second largest item in the budget after schools—are regularly reduced or eliminated altogether.
- For years, people with too many financial assets to qualify for Medicaid transferred some or all of their assets to relatives before applying. There now is a five-year “look-back” period that guards against these fraudulent transfers.
Some states have waivers that authorize them to provide, through Medicaid, an array of services, such as personal care attendants, home health care, case management, and respite care. These waivers are designed to enable individuals to live at home or in a community-based setting, rather than in a more costly institution.
Certain states even include cognitive rehabilitation on the menu of services offered with a Medicaid waiver. Beware that the eligibility criteria for a Medicaid waiver sometime defy logic. For example, in some states the survivor must have been injured after the age of sixteen.
Medicare is the nation’s largest health insurance program. The majority of Medicare recipients are sixty-five years of age or older. Also eligible for Medicare are people who have received Social Security Disability Income (see page 125) for two years. While twenty-four months may seem to be a long way off, you should be familiar with this program for your long-term financial planning. Here’s what you need to know about Medicare:
- Medicare has three parts:
- Part A - Hospital Insurance covers inpatient care in hospitals and skilled nursing facilities and some home health care. Most recipients don’t pay for Part A because they or a spouse paid Medicare taxes while they were working.
- Part B - Medical Insurance covers doctors’ services, outpatient care, and other medical services not covered by Part A, such as physical, occupational, and speech therapy. Nearly all recipients pay a standard monthly premium ($96.40 in 2009) for Part B. This premium usually is deducted from your monthly Social Security Disability Income benefit.
- Part D - The Medicare Prescription Drug Plan is optional. If you do not purchase Part D when you initially qualify for Medicare and decide to buy it later, you may pay a penalty. The cost varies depending on which provider you select. You may be able to choose a plan with no monthly premium.
- You choose how to have your medical services covered by Medicare. You can select either the original Medicare plan or you can choose among a number of Health Maintenance Organizations (HMOs) or Preferred Provider Organizations (PPOs) that participate in the Medicare Advantage program. Selecting among the Medicare Advantage plans is a time-consuming, complex exercise, but it can save you some money.
- Each year, you can review your health and prescription needs and switch to an alternative Medicare plan in the fall.
- If you have limited income and financial assets, your state may pay some or all of your Medicare premiums, deductibles, and coinsurance.
- You can learn more about Medicare by calling 800-633-4227 or visiting www.medicare.gov.
With a serious brain injury, your survivor is certain to miss a long period of work, and possibly, never work again. Obviously, this can be a huge drain on the family budget. Now is the time to plan for this financial blow.
Most of us, lacking the foresight and/or finances to purchase a private disability insurance policy, are dependent on our employer, the federal government, and our coworkers, to offset a medical disability. Let’s begin with your survivor’s employer.
Disability Insurance at Work
You may be wondering how many more paychecks your patient will receive now that she’s unable to work. The answer depends upon four circumstances:
- How much sick and vacation time she has accumulated: Usually, this is a few days, weeks, or months.
- Whether her employer provides short-term disability benefits: Short-term disability generally covers the first six months of absence.
- Whether her employer provides long-term disability (LTD) benefits: LTD usually kicks in after six months of absence and continues until retirement age.
- Whether her employer has a leave sharing program
Jessica was fortunate to have LTD benefits at work. She collects monthly disability checks that pay two-thirds of her salary — the industry standard — at the time of her injury. These checks started 180 days after her injury. Like most recipients, we pay taxes on these LTD benefits as earned income.
Long-term disability insurers typically deduct from the monthly benefit any other disability pay collected by the insured, such as Social Security Disability Income (SSDI) or Workers’ Compensation.
If your survivor will receive LTD benefits, you may see no reason to apply for SSDI. You should for three reasons:
- The LTD insurer probably will require it. If your survivor collects SSDI, the insurance company saves big bucks. They, likely, will even pay for an attorney to help your survivor obtain SSDI. If they don’t offer, ask.
- LTD plans — unlike SSDI — typically do not have cost-of-living adjustments. Jessica will collect the same monthly LTD benefit until she reaches retirement age. Each year, inflation nibbles away at the purchasing power of her benefit. The LTD provider generally will not deduct the annual Social Security cost-of-living adjustment from the benefit they pay your survivor. So, with SSDI, your individual’s overall disability benefit will increase a bit most years.
- Most importantly, individuals who receive SSDI are eligible for Medicare (see page 121), which will help you pay future medical bills.
Jessica’s employer did not provide short-term disability insurance to cover the six-month gap between her injury and her LTD coverage. Fortunately, she had compassionate colleagues.
Many workplaces have leave sharing programs through which coworkers can contribute accrued leave — usually vacation, not sick pay — to colleagues who have medical emergencies, either themselves or within their families. Jessica’s employer started a leave sharing program as a result of her accident. Thanks to the generosity of her colleagues, Jessica collected a full paycheck for months after her accident.
If I had still been working at the time of Jessica’s injury, I would have qualified for my employer’s leave sharing program as the spouse of an injured person.
If your survivor’s employer does not have a leave sharing program, it can’t hurt to ask her colleagues to start one, especially if she’s well regarded.
Social Security Disability Income
A benefit available to everyone who has worked a certain number of years is Social Security Disability Income (SSDI). SSDI is not welfare. It is insurance you pay for your entire working life. Your loved one is entitled to these benefits.
Since the baby boomers are aging and the Social Security Administration (SSA) is woefully understaffed, filing for SSDI is a lengthy process. But, it’s time well spent.
For me, filing for Jessica’s SSDI was a welcome respite from the helplessness and anxiety I was experiencing at the time. I was able to lose myself in the details of the application and feel productive.
If you’re too distracted to complete the application carefully — and it must be done carefully — ask someone to do it for you. Or, you can hire a case manager, an attorney, or other professional experienced in SSA procedures to apply for your survivor.
If you have not already done so, contact the Social Security Administration now (800-772-1213 & www.ssa.gov/disability) to begin the application process. If you prefer to speak to an SSA representative face to face, you can locate your local office in the blue pages of your phone book under United States Government.
Here’s what you need to know about Social Security Disability Income:
- SSDI does not cover short-term or partial disability.
- To qualify, your survivor must have a medical condition that, in the opinion of the SSA, prevents her from working for at least a year.
- With most private disability insurance, the insured is entitled to benefits if she can no longer work at her current profession, for example, as an attorney or as a carpenter. SSDI requires that the applicant be unable to work at any job, or, in their words, at any “substantial gainful activity” which, in 2009, paid $980 per month.
- The SSA considers the following factors when determining whether one is able to work at substantial gainful activity: her medical condition, age, education, training, and daily activities before and after her injury.
- SSDI usually commences with the sixth month of disability and continues until retirement age.
- At retirement age, SSDI automatically converts to the standard Social Security benefit every worker is entitled to in her golden years. The amount of the monthly benefit does not change with this conversion.
- Given that months or years will pass before your survivor receives her first SSDI check, it will be a big one. Benefits are paid retroactive to the date of eligibility if the application is submitted within one year of the injury. Otherwise, benefits are paid retroactive to the date of application.
- The monthly SSDI benefit is based on the applicant’s age and how much she has paid into the system. The average monthly benefit in 2009 was $1,153.
- About one-third of SSDI beneficiaries — those with higher incomes — pay income taxes on eighty-five percent of their benefit. People with lower incomes pay taxes on a smaller portion or pay no taxes at all.
- Each January, the SSDI benefit increases a small amount if the cost of living has risen.
- The amount of your financial assets has no impact on your eligibility. If Bill Gates acquired a serious brain injury, he would qualify for SSDI.
- The Social Security Administration determines if you are disabled, not your doctor. They require substantial medical proof of the disability and detailed descriptions of the claimant’s capabilities and impairments.
- When you apply for disability benefits, the SSA may send you to a physician, at their expense, for a medical exam.
- Some spouses and/or children of SSDI beneficiaries are eligible for payments. The rules are complicated. Be sure to discuss your family situation with an SSA representative.
- Young men, the largest group of brain injury survivors, usually have not paid enough into the Social Security system to qualify for SSDI. They may, however, qualify for another program administered by the Social Security Administration, Supplemental Security Income, which is discussed on page 131.
- If your brain injury is labeled “mild,” you must have extensive documentation of your impairments and much patience to qualify for Social Security Disability Income. In her humorous and insightful book, I’ll Carry the Fork! Recovering a Life after Brain Injury, Kara Swanson describes her struggles to demonstrate her eligibility for SSDI with a mild brain injury.
- The majority of applicants for SSDI initially are rejected. If this happens to you, don’t be discouraged; appeal the decision within sixty days.
Obtaining Social Security Disability Income is a long and frustrating, but ultimately fair, process. If your survivor is disabled by her brain injury, if she has the support of her health care providers, if you have completed the paperwork clearly and completely, and if you keep appealing, she should qualify for SSDI.
Appealing Your Case for SSDI
I applied for Jessica’s SSDI one week after her car crash, when she was still in a coma. Four months later, when her application reached the top of the pile, the Social Security Administration denied her claim. They determined that:
- Jessica’s condition was improving — True
- Jessica was alert and coherent — Mostly true
- Jessica was not expected to remain disabled for twelve consecutive months — Certainly not true
I filed for reconsideration on the grounds that Jessica’s disability would last more than one year. Remember, you must file for reconsideration within sixty days of receiving your initial denial.
The initial application for SSDI by survivors of a brain injury usually is rejected for a combination of four reasons:
- Brain injuries are complicated. Cognitive impairments, unlike physical deficits, are tough to detect and evaluate.
- The SSA goal is to provide benefits quickly to the largest number of qualified applicants. They scan each application, approving only those that clearly meet the eligibility requirements. They deny applications that involve more time to evaluate.
- Traumatic brain injury is not yet on the list of automatic disabling impairments used by the evaluators.
- Doctor’s offices and government bureaucracies often move slowly. All of the documentation required to prove the severity of a brain injury generally does not reach the evaluator prior to the initial ruling.
When a claimant requests reconsideration, the SSA spends more time reviewing the application and, often, has more documentation of the injury. Still, most survivors are denied benefits a second time. Despite the rash of debilitating brain injuries among our troops in Afghanistan and Iraq, the lifelong, disabling consequences of a brain injury still are underestimated by the Social Security Administration.
As expected, Jessica’s request for reconsideration was denied.
Please, don’t be discouraged by this second denial. Don’t give up. Request a hearing — the next stage in the SSDI appeals process — within sixty days. Then, be prepared for a long wait. In 2007, the average waiting period for a hearing was 520 days. In certain areas, the wait was 900 days.
At the hearing stage, an administrative law judge examines your survivor’s application in detail. The hearing is an informal question and answer session held in a closed courtroom. The majority of brain injury SSDI cases are approved at this time.
In Jessica’s case, a hearing was scheduled. The judge, however, after reviewing her file prior to the hearing, ruled that there was sufficient documentation to approve her application. A hearing was not necessary.
At any point in this process, you have the right to hire an attorney or someone else to represent you with the Social Security Administration. At the hearing stage, about fifty percent of claimants hire a lawyer to argue their case.
SSDI claims can be a lucrative legal profession. Certain lawyers choose to represent only the best-qualified applicants. In 2009, attorneys were permitted to bill their clients up to $5,300 for a positive outcome. The lawyer collects her fee from your first SSDI payment, which, as noted above, will be a big one.
One way to locate an attorney to represent your survivor is to contact the National Organization of Social Security Claimants’ Representatives (800-431-2804 & www.nosscr.org). Also, see the discussion on hiring an attorney on page 139.
If you have patience, excellent communication skills, fine attention to detail, and time, you should be able to represent your patient and save some money. But, it’s a gamble I wasn’t willing to take when I applied for SSDI for myself eighteen months before Jessica’s accident.
If an administrative law judge denies your appeal, you may file a suit in District Court. This court, though, rarely overrules SSA decisions, and it’s difficult to find an attorney to represent you at this stage.
Finally, if your application for SSDI is dragging and you are in desperate financial straits, you can try contacting your congressional representatives in Washington, D.C. When I worked for the federal government, I sometimes found a bright red folder, known as a “congressional,” in my mail. I was required to respond to this request from a member of Congress for action or information within forty-eight hours. A “congressional” sent to the SSA on behalf of your survivor may speed things up.
Supplemental Security Income
Supplemental Security Income (SSI) is a federal and state government needs-based income program for the aged, blind, and disabled who have limited income and few financial assets.
Here’s what you need to know about Supplemental Security Income:
- If your survivor does not qualify for Social Security Disability Income (SSDI), she may be eligible for SSI.
- SSI is funded by federal and state tax revenues.
- The federal portion of SSI is administered by the SSA (800-772-1213 & www.ssa.gov/disability).
- Some states supplement the federal benefit.
- SSI has strict eligibility rules. If you think your survivor may qualify, contact the Social Security Administration.
- The monthly SSI benefit varies among states and is based on the recipient’s living arrangement and other income, including earnings from work, Social Security and other government benefits, child support, and gifts of food, clothing, or shelter.
- People who qualify for SSI usually are also eligible for food stamps and Medicaid (see page 120).
Workers’ Compensation is a state-mandated medical, disability, and life insurance program for people injured on the job. If your survivor was hurt at work, this is what you need to know about Workers’ Compensation:
- Most employers must have Workers’ Comp insurance.
- Workers’ Comp laws are complex and vary from state to state.
- In some states, public funds are used when an injured worker is employed by an uninsured company.
- The claimant usually is sent to a doctor recruited and paid for by her employer.
- If the claimant is temporarily unable to work, she usually will collect two-thirds of her wages up to a fixed ceiling.
- If the claimant is permanently unable to perform her job or work at all, she may be eligible for long-term or lump-sum benefits. The payment amount depends on the nature and extent of her injury.
- In exchange for these guaranteed disability benefits, the claimant usually does not have the right to sue her employer.
- However, if your patient was hurt because of reckless or calculated action by her employer, she can bypass the Workers’ Compensation system and sue in court for a full range of damages.
- To know your rights, pick up a copy of the rules in your state from its Workers’ Compensation office (see the blue pages in your phone book).
- There may be a time limit for filing a Workers’ Comp claim.
- Employers sometimes vigorously contest employee claims.
- If this happens, consult a lawyer with experience handling Workers’ Compensation claims on behalf of injured workers.
- Laws in many states limit legal fees to a certain fraction of the award (ten to forty percent). You pay only if you win the case.
- In most cases, jurisdiction over Workers’ Compensation disputes is handled by an administrative law judge.
- Appeals may be taken to the court system, but such appeals are viewed skeptically by state appellate courts.
- The Workers’ Comp system sometimes provides vocational rehabilitation benefits, such as on-the-job training, schooling, and/or job placement assistance.
Disability Pay & Health Insurance for Children
If your survivor is under the age of eighteen, she may be eligible for federal and/or state government disability pay and health insurance programs. There are a number of these programs and locating the appropriate one for your child might take some legwork. Here are some details to get you started.
Supplemental Security Income for Children
Children who are under the age of eighteen and come from low income families may be eligible for Supplemental Security Income (SSI). Here’s what you need to know:
- Children with a brain injury will qualify for Supplemental Security Income if they meet the following two requirements:
- They are disabled as defined by the Social Security Administration definition of disability for children.
- The income and resources of both the child and the family members fall within the eligibility limits.
- To meet the Social Security Administration definition of disability, the child must satisfy the following three requirements:
- The child must not be working and earning more than $980 a month in 2009.
- The child must have a physical or mental condition or a combination of conditions that result in “marked and severe functional limitations.” This means that the child must be severely limited by her medical condition(s).
- The child’s condition must have lasted, or be expected to last, at least twelve months; or be expected to result in death.
- The amount of the SSI payment is different from one state to another because some states add to the SSI payment.
- If a child is in a medical facility and health insurance pays for her care, the monthly payment in 2009 is limited to $30.
- If the SSA cannot make a disability decision using the medical information, school records, and other facts they have collected, they may send the child for a medical exam, at their cost.
- It can take three to five months for the Social Security Administration to decide if your child is disabled. However, they consider some medical conditions so severe they will begin making payments immediately and for up to six months while they decide if the child is, indeed, disabled. (Despite numerous telephone calls, I was unable to determine if brain injury is one of these conditions.)
- In the Supplemental Security Income program, a child becomes an adult at age eighteen and is reevaluated within one year following her eighteenth birthday. The Social Security Administration then uses different medical and non-medical rules to determine if the claimant can continue to receive SSI payments. The differences are that:
- Only the survivor’s income and resources are counted, not her parents’, and
- The survivor must be disabled as defined by the disability rules for adults, not children.
- Children who were not eligible due to their parents’ income and resources may become eligible for SSI at age eighteen.
- When applying for Supplemental Security Income for your child, you will need records that show your income and financial resources, as well as those of your child. It also is helpful to have any school records and the names and contact information for teachers, day care providers, and family members who can describe your child’s abilities and disabilities.
Medicaid for Children
In most states, children who receive Supplemental Security Income (SSI) also qualify for Medicaid. In fact, some disabled children are eligible for Medicaid even if they do not qualify for SSI. It’s wise to check with your local Social Security office, your state Medicaid agency, or your state or county social services office for more information.
Children with Special Health Care Needs
When your child receives Supplemental Security Income (SSI), she will be referred to health care facilities that provide services under the Children with Special Needs Provision of the Social Security Act. These health services usually are managed by state health agencies. Even if your child does not receive SSI, one of these programs may be available to help you. Local health departments, social service offices, and hospitals should be able to help you contact your local Children with Special Health Care Needs program.
The Children’s Health Insurance Program
The Children’s Health Insurance Program is a federal and state government partnership which enables states to provide health insurance to children from working families with incomes too high to qualify for Medicaid, but too low to afford private health insurance. The program is available throughout the country. You can get more information at 877-543-7669 and www.insurekidsnow.gov.
Social Security Disability Income for Children
The Social Security Disability Income (SSDI) program pays benefits to adults who acquired a disability before reaching age twenty-two. The term for this is an SSDI child’s benefit because it is paid on a parent’s Social Security earnings record. Here’s what you need to know about this program:
- For a disabled adult to become entitled to a child’s SSDI benefit, at least one of her parents:
- Must be receiving Social Security retirement or disability benefits; or
- Must have died and worked long enough to qualify for Social Security benefits.
- Child benefits continue as long as the individual remains disabled.
- At age eighteen, the child is evaluated according to the SSDI definition of disability for adults.
- You can apply for Social Security Disability Income for your child by calling the Social Security Administration (SSA) at 800-772-1213 or by visiting your local Social Security Administration office. You will need your child’s birth certificate and Social Security number.
- To expedite the evaluation process, it’s best to provide the SSA with as much documentation of your survivor’s disability as possible, including the number and dates of hospitalizations, doctor visits, therapy sessions, and copies of any medical records in your possession.
Do We Need an Attorney?
You’re exhausted and confused. Your nerves are frazzled. Your medical bills are skyrocketing with no end in sight. You have no idea whether your survivor will ever be able to return to school or work. She may require long-term medical and custodial care. Your financial future may be in jeopardy. But right now you don’t want to face these concerns. You just want to be at your survivor’s bedside.
An attorney can sort through the complex and time-consuming maze of financial, insurance, and legal matters you’re about to encounter.
If there’s the possibility of a lawsuit — for or against your loved one — this question is easy to answer. You need an attorney now. Your lawyer will gather evidence about the events causing the injury; collect police reports, photographs, and witness testimony; establish legal responsibility and monetary damages; and try the case.
If your survivor was injured due to the negligence of others, she may be compensated in a court of law for her medical and rehabilitation expenses, loss of income, pain, and suffering.
Otherwise, the decision to hire an attorney demands some thought. Let’s consider your situation.
First, you’re facing an intimidating pile of paperwork and rounds of trench warfare with your health insurance company and, possibly, your Workers’ Compensation, automobile, homeowners, long-term care, and umbrella insurers. They will be looking to minimize their liability. You must be prepared to fight for your rights.
Second, if your survivor is employed, you must file for disability benefits with her employer, any private disability insurance she may have, and with the Social Security Administration. These folks will be in no rush to write you a check.
Third, if your patient is older than eighteen years of age and unable to make medical, financial, and legal decisions for herself, you must get permission from the courts to make these decisions for her. Neither a spouse nor a parent automatically becomes the guardian of an incapacitated adult.
Fourth, you may need to arrange for the long-term care of your survivor who may outlive you by decades. This includes estate planning and a special-needs trust.
Many of these crucial matters must be dealt with quickly. They all must be handled accurately.
I chose to handle these matters myself. I had certain advantages. We had great health insurance. I was a career federal government employee with years of experience with arcane regulations, red tape, mountains of paperwork, and bureaucratic trench warfare. Handling these chores gave me a sense of accomplishment when I otherwise felt powerless to help Jessica. The paperwork distracted me from the panic and grief I was trying to contain. Plus, I was fortunate to have people willing to spend time with Jessica when I was filling out forms and making phone calls.
However, I often worried that I would overlook something crucial or make a mistake that we would regret later.
Hiring a competent attorney will give you the peace of mind that these matters are being handled well. It also will eliminate a potentially huge source of stress in an already nerve-wracking time. Best of all, it will give you more time to spend with your survivor, with your family, at your job, or taking care of yourself.
Many of the caregiver panel members hired attorneys and most are glad they did. The downside, of course, is that an attorney will cost you money. If this is an issue, there may be government or nonprofit organizations in your community, such as Legal Aid, that offer free or low-cost legal advice.
Attorneys are compensated in one of two ways: an hourly or pre-determined fee, or a contingency agreement. With a contingency arrangement, the lawyer will represent your survivor for a percentage of the money collected. This enables you to hire an attorney with no money upfront. You pay the lawyer only if you win your case.
If you decide to hire an attorney, keep these guidelines in mind:
- Don’t delay, but be deliberate in your choice.
- It’s essential that your attorney be intimately familiar with the legal, medical, financial, and long-term issues related to brain injury. The vast majority of lawyers do not have this expertise. Here are four ways to locate attorneys well-versed in brain injury:
- Check out the Brain Injury Association of America National Directory of Brain Injury Rehabilitation Services, which includes a list of lawyers throughout the U.S. with experience in brain injury cases (800-444-6443 & www.biausa.org).
- Ask your state brain injury association (see page 234) for the names of attorneys who show their interest in brain injury by supporting the association.
- Visit the Web site of the American Association for Justice. They have a TBI Litigation Group and a public directory of lawyers who practice in this area (www.justice.org).
- Contact your state bar association attorney referral service.
- Interview three or four attorneys. Don’t just pick one from the yellow pages, a television commercial, or a billboard.
- Have someone accompany you to the interview to take notes and to provide a second perspective.
- The attorney, not a paralegal (an attorney’s assistant), should meet with you in the initial interview.
- Ask for the names and phone numbers of three or four previous clients with brain injuries. Contact them for references.
Here are some more questions to ask in an interview:
- What first interested you in brain injury cases?
- Do you have any special training or education in brain injury law?
- Are you familiar with the long-term challenges of living with a brain injury?
- What local, state, and federal government benefits are my survivor entitled to?
- What experience do you have negotiating with health insurers to obtain benefits for your clients?
- How many brain injury cases have you handled?
- How many trials have you litigated for survivors?
- What were the outcomes of these trials?
- Have you published or lectured in the field of brain injury law?
- Do you attend conferences sponsored by the North American Brain Injury Society, the Brain Injury Association of America, and/or the state brain injury associations?
- How will you determine what impairments my survivor is likely to have?
- How will you educate the judge and jury about these impairments?
- What experts will you retain to help you prepare and try our case?
- Who else in your office will work on our case? What are their credentials?
- Who will be our primary contact?
- How will you calculate the financial settlement we request in the trial?
- How will you help us protect the funds awarded in a settlement or judgment and remain eligible for government benefits, such as Social Security Disability Income, Medicare, and/or Medicaid?
- Is your firm able and willing to advance as much as $50,000 in the investigation, preparation, and presentation of our case?
After the interview, think about how the attorney responded to your questions, how she and the office staff treated you, and how knowledgeable she appeared to be about brain injury. Will you be comfortable working with her, perhaps, for a long time?
Here are four things to keep in mind, when you have selected an attorney to represent your survivor:
- Be sure you understand and receive in writing your agreement regarding the attorney’s fees: the percentage retained in a contingency agreement, the hourly fee in a pay-as-you-go arrangement, or the amount of a pre-determined fee, as well as a detailed explanation of any billable expenses.
- This written agreement also should indicate whether the attorney will advance the expenses of your case, and who, ultimately, is responsible for the case expenses if the case is settled or lost.
- A paralegal likely will handle your case on a day-to-day basis. Your attorney, however, should respond to your questions and concerns.
- If you become dissatisfied with your lawyer, you have the right to switch attorneys at any time during your case. States vary in how a discharged attorney is paid.
Not hiring an attorney worked for us; it may not for you. This is a crucial decision that should be well thought out.
Checklist for Success #3: Paying the Bills
___ Have you considered sending out-of-town family and friends home so they can save precious hours of leave from work to return when you will need their help much more?
___ Have you familiarized yourself with your survivor’s health insurance policy to understand what medical and rehabilitation services will and will not be covered? What are the policy’s preauthorization requirements, benefit limits, co-pays, restrictions, and reporting requirements?
___ How much rehabilitation — inpatient and outpatient — will your survivor’s health insurance cover?
___ Is your survivor’s health insurance is lacking,?
___ Are there any other insurance policies that may help you pay the medical bills: auto, home, umbrella, disability, long-term care, and workers’ compensation?
___ Are your survivor’s income and financial assets low enough for her to qualify for Medicaid?
___ Do you know that if your survivor qualifies for Social Security Disability Income, she will become eligible for Medicare in two years?
___ How long will your survivor continue to receive pay checks while she is unable to work? This depends upon her eligibility for:
- Vacation and sick pay
- Short-term disability benefits
- Long-term disability benefits
- Leave sharing
- Social Security Disability Income
- Supplemental Security Income
- Workers’ Compensation
___ Have you started the very long process of applying for Social Security Disability Income benefits? It’s not too early to begin.
___ Do you know how to appeal your survivor’s case for Social Security Disability Income if her application is denied? Most initial applications involving brain injury are rejected.
___ Are your survivor’s income and financial assets low enough for her to qualify for Supplemental Security Income?
___ If your survivor was injured on the job, are you aware of the benefits she qualifies for under Workers’ Compensation health and disability insurance?
___ If your survivor is a child under the age of 18, are you aware that she may be eligible for certain benefits?
___ Have you considered hiring an attorney? There are many reasons to do so.
___ Is it possible your survivor may need to stay in a skilled nursing facility until she’s ready for rehabilitation? If so, have you begun researching the local nursing homes?