VIRGINIA COMMONWEALTH UNIVERSITY

NATIONAL RESOURCE CENTER
FOR TRAUMATIC BRAIN INJURY

Neuropsychology and Rehabilitation Psychology Division Department of Physical Medicine and Rehabilitation.

Insurance and Financial

QUESTION:
After sustaining a disabling brain injury, I applied for Social Security benefits. I was turned down, but a friend advised me to appeal the denial. Should I continue with the process? What is the appeals process, and what is the likelihood of being approved?

ANSWER #1

When one has a physical and/or mental condition which is expected to continue for a period of not less than 12 consecutive months and which renders one unable to engage in any substantial gainful employment, one should consider seeking Social Security benefits. The process begins by applying for such benefits through the Social Security Administration. If that application is denied, one may move timely to request reconsideration. If reconsideration fails, then one may request a hearing before an administrative law judge (ALJ). One is well-served by seeking the assistance of an attorney to pursue the request for a hearing. If the ALJ also denies these benefits, then suit may be filed in the United States District Court. People with brain injuries, who have the support of their treating health care providers, will usually prevail in obtaining benefits. However, if benefits are not awarded by the time of the decision of the ALJ, one is not likely to prevail. Only rarely will a federal district court overrule the decision of the Social Security Administration through litigation. Moreover, finding a lawyer to pursue a Social Security case in district court may be difficult as many attorneys will not agree to pursue such actions. Nonetheless, in an otherwise meritorious case, when a lawyer will agree to provide representation, action in the federal court may be pursued.

ANSWER #2

It is not unusual to be turned down for Social Security disability benefits the first time you apply. While the majority of first-time applicants to Social Security are turned down, the majority of those who complete the appeals process are approved. Due to the uniqueness of an individual’s brain injury and its effect on a person’s ability to work, it is difficult to be sure that all of the relevant information is in the hands of the Disability Determination Specialist at the time of evaluation of eligibility. It is usually during the first appeal to a denial of benefits that a person seeks the advice of a legal advocate to go through the full appeals process. It is recommended that a person with a brain injury go through the appeals process. It is usually during this phase that more in-depth information is uncovered and evaluated to move towards final approval of benefits.

It is important to understand that there is no specific category for traumatic brain injury in the Listing of Impairments, the published conditions and regulations that Disability Determination (D. D.) Specialists use to make their decisions on eligibility. Therefore, the D. D. Specialist may review your application considering information listed under "mental disorder impairment" and the "functional effects of the injury on the ability to work for at least 12 months." A physical disability is somewhat easier for the D.D. Specialist to evaluate, but cognitive impairments are not as easy to identify and evaluate in relationship to vocational needs. If, after reconsideration, a second denial occurs, an appeal before an administrative law judge can take place. It is at this stage that there is more opportunity to present more information, in person and with an advocate, on the issues that prevent someone from maintaining gainful employment. After a hearing by an administrative law judge, an appeal can be carried further to the Appeals Council and finally to federal court.

ANSWER #3:
Being denied social security disability benefits is commonplace regardless of the disability. The process does allow you to appeal the decision several times, and it is definitely to your advantage to do so. However, without assistance, you can expect to be denied on the first appeal (known as the reconsideration level) unless you know of information that was missing from your application or how to better present your case. Most reconsideration requests are denied. At this point, many people choose to hire an attorney to represent them before a judge, and many cases are reversed at this second level of appeal. In many states it can take over a year to get an appointment with the judge. All told, the entire application and appeal process with or without an attorney can take between 18 months and 3 years, and if you do hire an attorney, he or she is entitled to 25% of the retroactive benefits. There is an alternative to this approach. Hiring assistance at the beginning of the application process or at the first appeal can enable you to avoid huge delays in the receipt of your benefits, and the cost is generally much less. Non-lawyer representatives who know social security rules are very effective in obtaining and presenting the facts of your case and, therefore, in obtaining your benefits early on in the game. Strategies for expediting the hearing with the judge are also available and used readily, as fees are not based on how large the retroactive amount is. This pro-active approach can save you time and money and enable you to avoid the inevitable problems of being without income long-term. Check your yellow pages for a non-lawyer representative in your community or request a referral from a rehabilitation provider who may be aware of such an advocate. In Virginia, you may contact Disability Benefits Assistance, Inc. for more information at (804) 598-7599, P.O. Box 664, Powhatan, VA 23139, E-Mail: ehorn@freedomnet.com.

QUESTION:
I have been denied Social Security benefits after initial application and appeal. Should I continue to appeal? Would it be wise to consult, and possibly hire, and attorney? How would hiring an attorney affect this process?


ANSWER #1

While the majority of first-time applicants for Social Security disability benefits are turned down, the majority of those who complete the appeals process are approved. Although the process can be confusing, it is important to appeal an initial denial. If at all possible, hiring an attorney or going to Legal Aid to find a legal advocate would be a wise choice. While it certainly is helpful to involve an attorney when making the first appeal, it can be useful to seek legal advice before even applying for benefits. Look for an attorney who specializes in Social Security. Consult trusted professionals, friends, family, the state Bar Association, or a Lawyer Referral Service for a referral. A lawyer experienced in Social Security will: (1) understand the complicated process of applying for benefits, (2) know how to cut corners and speed up the process, (3) obtain medical records and other necessary documentation, saving you the trouble, and (4) use the most effective methods for presenting your case and obtaining an approval. Generally, an attorney who handles your case will accept 25% of the past due benefits or $4,000 whichever is less. If you are not awarded benefits, most likely you would still be expected to pay for the attorney’s out-of-pocket expenses, such as photocopying, postage, etc.

ANSWER#2
Yes, you should continue the appeal by at least requesting and attending a hearing before an administrative law judge (ALJ). It would be wise to consult with and retain an attorney. A competent attorney is able to organize evidence and make factual, as well as legal, arguments which may persuade the ALJ to award benefits. At the hearing stage, lawyer-to-judge communications tend to constitute positive steps toward resolving key issues. A decision to pursue the claim in federal court, in the event of an unfavorable ruling by the ALJ at the hearing, should be made only after timely consultation with an attorney.

ANSWER #3:
Being denied social security disability benefits is commonplace regardless of the disability. The process does allow you to appeal the decision several times, and it is definitely to your advantage to do so. However, without assistance, you can expect to be denied on the first appeal (known as the reconsideration level) unless you know of information that was missing from your application or how to better present your case. Most reconsideration requests are denied. At this point, many people choose to hire an attorney to represent them before a judge, and many cases are reversed at this second level of appeal. In many states it can take over a year to get an appointment with the judge. All told, the entire application and appeal process with or without an attorney can take between 18 months and 3 years, and if you do hire an attorney, he or she is entitled to 25% of the retroactive benefits. There is an alternative to this approach. Hiring assistance at the beginning of the application process or at the first appeal can enable you to avoid huge delays in the receipt of your benefits, and the cost is generally much less. Non-lawyer representatives who know social security rules are very effective in obtaining and presenting the facts of your case and, therefore, in obtaining your benefits early on in the game. Strategies for expediting the hearing with the judge are also available and used readily, as fees are not based on how large the retroactive amount is. This pro-active approach can save you time and money and enable you to avoid the inevitable problems of being without income long-term. Check your yellow pages for a non-lawyer representative in your community or request a referral from a rehabilitation provider who may be aware of such an advocate. In Virginia, you may contact Disability Benefits Assistance, Inc. for more information at (804) 598-7599, P.O. Box 664, Powhatan, VA 23139, E-Mail: ehorn@freedomnet.com.

QUESTION:
I have applied for Medicaid to cover future medical expenses; however, I cannot pay for the care I received at the time of my injury. The medical bills continue to arrive in the mail, and they are huge. How will I pay these bills and still manage to survive on my modest income?

ANSWER
You may want to consider consulting an attorney. Seek a referral through friends, family, the state Bar Association, or a Lawyer Referral Service. Legal advocates also may be available through Legal Aid and Centers for Independent Living. Try to find an attorney or legal advocate with experience providing financial advice to people in your situation. Another option is Consumer Credit Counseling. This is a free or inexpensive service provided by one (or more) of your local human services agencies. For example, in Virginia, the local Extension offices provide the service. Through Consumer Credit Counseling a financial counselor will advise the client on how to pay bills, reduce debt, and meet financial goals (e.g., saving for a house) all within the client’s income constraints. The counselor also can talk with the client’s creditors and work out reasonable payment plans. Lastly, you can at least achieve the latter on your own. Most hospitals are willing to work out a payment plan that is reasonable to you, most likely without interest. Consult the financial office of the hospital. Ask if financial aid is available, too. Some hospitals have funds -- indigent programs, subsidies, state funding, or private foundations -- to cover expenses for patients who are indigent or have low incomes. Such hospitals do not advertise this, so definitely ask!

QUESTION:
My son’s doctor has recommended that my son get cognitive rehabilitation upon discharge from the hospital. Our insurance does not cover this service. Is there a way to get cognitive rehabilitation covered by insurance or some other source?

ANSWER
There are several ways of addressing this not too infrequent dilemma:

* Proper wording of the physician’s order

* Appeal the denial of services

* Seek other source of funding


Proper Wording of the Physician’s Order

Most insurance policies do not identify cognitive rehabilitation or cognitive impairments as covered conditions. However, cognitive rehabilitation or cognitive impairments may be specifically excluded from coverage in some policies. In either case the likelihood of denial of service is quite high if the physician orders "cognitive rehabilitation." On the other hand, most policies cover "medically necessary" outpatient speech pathology treatment, and some cover outpatient occupational therapy and neuropsychology, as well. The American Medical Association recognizes cognitive rehabilitation as a standard treatment procedure by including it in their Current Procedural Terminology (CPT) codes.

CPT code 97770 reads:

"Development of cognitive skills to improve attention, memory, problem solving, includes compensatory training and/or sensory integrative activities, direct (one-on-one) patient by the provider."

Insurance companies use CPT codes to identify acceptable treatment procedures. The doctor should not order "cognitive rehabilitation" but, instead, should order the discipline (speech therapy, occupation therapy, neuropsychology) that is covered by the client’s policy. Since insurance companies recognize a procedure code related to cognitive rehabilitation and they cover certain rehabilitation disciplines, and those disciplines provide cognitive treatment, it is important that the physician orders the discipline that is covered by the policy rather than the procedure (cognitive rehabilitation) that the discipline provides (CPT code 97770). For example the order might read, "Speech therapy to evaluate cognitive skills." Then, after the evaluation has been completed, the physician should write another order such as, "Speech therapy 3 x wk. x 8 wks. to improve attention, memory and problem solving." It is extremely important that the physician does not write a non-specific, open-ended order such as "speech therapy evaluate and treat."

To support the physician’s order, it is of critical importance that the therapist’s evaluation report and goals demonstrate that the treatment of the cognitive impairments is "medically necessary." With respect to rehabilitation, medical necessity is based on the presence of a medical condition (in this instance brain injury) that has caused impairments (e.g., severe decrease in short-term memory, moderate decrease in problem solving, moderately severe decrease in awareness of impairments, etc.), and that those impairments have resulted in significant disabilities (e.g., severe inability to independently carry out personal, household, community, work/educational and/or leisure activities of daily living). The insurance companies want treatment to result in increased daily living skills not, for example, simply an increase in the ability to remember more things for a longer period of time per se. Thus, the evaluation report (i.e., assessment results, short- and long-term goals and treatment plan) must clearly identify how the cognitive impairment has impacted the client’s daily living skills. In this regard, the wording of the goals could be drawn from the following CPT codes and the treatment plan should identify these codes by number:

CPT Code 97535

"Self care/home management training (e.g., activities of daily living and compensatory training, meal preparation, safety procedures, and instructions in use of adaptive equipment) ...."

CPT Code 97537

"Community/work reintegration training (e.g., shopping, transportation, money management, avocational activities and/or work environment/modification analysis, work task analysis) ...."

Finally, the clinician’s documentation should clearly bring out any and all existing safety risks that are caused by the cognitive impairment.

Appeal The Denial Of Services

If your policy specifically excludes cognitive rehabilitation, you do not have a basis to appeal the insurance company’s decision. The presumption is that the person who purchased the policy had full knowledge of what was and was not covered before purchasing it and, therefore, purchase of it indicates acceptance of the terms of the policy. However, one should contest the denial of services if the section in the policy that describes covered services lists speech therapy, occupational therapy and/or neuropsychology as covered outpatient benefits. To appeal the denial you should write a letter asking for a "reconsideration" of the referral request. The letter should include a direct quote of the wording in your policy that states which therapies are covered for outpatient benefits. It does not hurt to attach a copy of the page from which you are quoting. You also should indicate that these therapists provide treatment of cognitive impairments as described in CPT code 97770 and quote that code. CPT (Current Procedural Terminology) codes, which are written by the American Medical Association, are used by insurance companies to identify acceptable health care services.

CPT CODE 97770:

"Development of cognitive skills to improve attention, memory, problem solving, includes compensatory training and/or sensory integrative activities, direct (one-on-one) patient by the provider."

The letter should indicate that since the disciplines which provide outpatient rehabilitation services are covered, the treatment procedures used to provide those services, as listed in the Physical Medicine section of the CPT codes, also are presumed to be covered. The letter should be sent to the business unit that handles your employer’s contract. A copy also should be sent to the President of the insurance company. If you can afford it, you should have an attorney write the letter and print it on the attorney’s letterhead. It is also very helpful to identify in the letter other cases in which the insurance company has paid for cognitive rehabilitation. The insurance company may have set a precedent if they have previously covered the service for which you are seeking coverage.

Insurance companies in each state are regulated by the State Department of Insurance or a department with a similar name. If your appeal is denied by the insurance company, you can lodge a complaint with the State Department of Insurance. In this case you would send a letter to Insurance Commissioner. Your letter should provide information regarding the insured’s medical condition (brain injury), the fact that a physician ordered the therapy that you believe is covered by your policy, an explanation of the steps you have taken with your insurance company, a description of the insurance company’s denial and an explanation as to why you believe the service is covered by your policy. You should attach a copy of the pertinent pages of your policy and a copy of the insurance company’s denial letter.

Seek Other Sources Of Funding

First, you may want to see if there is another insurance company that will cover cognitive rehabilitation and switch to that company. However, prior to making a change, one should be sure that one has written evidence from that insurance company that they will cover the services that are related to a "prior condition" (brain injury). Other possible resources might be the State Department of Rehabilitation (which goes by different titles in different states), Medicaid (if the person has passed his/her 21st birthday) or the public school system (if the person is between 0 and 21 years of age). If a person is injured prior to graduation, the school district is responsible to establish an Individual Education Plan (IEP) that meets the student’s educational needs. Educational needs encompass not only academic subjects but also broad areas such as the ability to learn, communicate, process information, and socialize. If the school district did not establish an IEP and the person graduates, one can still request that the school district provide appropriate educational services if you can demonstrate that the failure to provide them before graduation has caused harm to that person. In this instance, harm would be impaired ability to learn, communicate, etc. The Community College system may be another resource within the public education sector. Section 504 of the 1973 Rehabilitation Act mandates that the community colleges provide accommodations and modifications to the curriculum to meet any special needs of students. Some community colleges have actually established educational programs for those with brain injuries. Others provide special services and assistance within the classroom. Finally, you may want to identify "interagency agreements" to provide services. In many states various state departments, such as the Department of Education and the Department of Health, The Department of Human Services and the Department of Rehabilitation, have created agreements regarding who pays for what services. The interagency agreement usually indicates which department holds the ultimate responsibility to provide a particular service. The agreement can be obtained from any of the appropriate departments under the Freedom of Information Act.

QUESTION:
After a long hospital stay, my son is coming home. He will need long-term rehabilitation; however, we have nearly reached the "cap" on our insurance coverage. What should we do when the insurance runs out? Are there other sources of funding for rehabilitation?

ANSWER
In general, funding for people with disabilities is available through Social Security and state Medicaid and Medicare programs. By contacting your local Social Security office, you can find out about these programs and determine if you are eligible. If you qualify for Social Security funding, you can receive monthly checks to help cover living expenses. Medicaid and Medicare are programs that cover medical expenses for people without private insurance who qualify. It is a good idea for people anticipating long-term or permanent disability to investigate these (and related) government programs.

Funding for rehabilitation therapies may be available if the benefits to be gained from the therapies are related to the mission or purpose of the funding source. For example, funding for rehabilitation therapies may be available through your state vocational rehabilitation agency if your son is intending to pursue gainful employment and is declared eligible for vocational rehabilitation services. If your son became disabled before age 22, he may also qualify for services through the Division of Developmental Disabilities.

Unfortunately, it takes time to investigate possible funding sources, and sometimes you will be referred to one place, then another, then another until you get to the place that actually has the funding that is needed. It may take perseverance, but it will be worth it if you do get the funding.

It may also be necessary to get funding from several sources and "blend" the funding. Voluntary organizations may be a source of some funding. In my experience, funding for rehabilitation therapies has been provided by such organizations as Catholic Social Services, the Catholic Archdiocese, and scholarship funds through rehabilitation hospitals. Even if a voluntary organization has not provided funding in the past, I would recommend contacting one whose mission is compatible with rehabilitation. In addition, voluntary organizations may be a source of funding for other rehabilitation needs that will enhance the rehabilitation therapies, even if they cannot pay for the actual therapies. For example, a local Rotary Club contributed a significant amount of money to an individual to build a wheelchair-accessible ramp on the outside of her home. When in doubt, ask!

1 comment (Add your own)

1. Michael Nicholson wrote:
Have an open workers' compensation case in New York. F7720078. Never really had legal help in the past. Workers' Comp is denying some of my medical. Can you help me?

Sun, August 9, 2015 @ 4:16 PM

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