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Disability Newsletter Winter 2014

Time of Changes for Disability Clients

Our disability practice continues to grow and in this issue we will discuss some of the changes and challenges we are facing.  The Veteran’s Administration remains seriously understaffed and dogged by time delays.  It is still a challenge just to receive records.  For Social Security Disability Insurance and SSI claimants, things have been on a bit of the upswing in the region in one manner:  The Columbia Office of Disability Adjudication and Review has been coming to Hannibal for hearings fairly regularly.  Some of the new, inexperienced administrative law judges have been learning from cases we have had remanded by Federal Courts and the Appeals Council.  We have seen a slight uptick in the numbers of people being approved.

An unpleasant development has been a decline in the number of Social Security claimants who are having their cases awarded without hearings.  As you will read below, there is an orchestrated political campaign against Social Security Disability by politicians and political action committees seeking to brand it as the “new welfare.”   Claimants of advanced age or with advanced serious diseases that would have received benefits on application or after a few months a few years ago are now having to go through the hearing process – which is taking about twenty-three months in Illinois and nineteen-to-twenty months in Missouri.

Our Reconfigured Medical Source Statement

If you are a healthcare provider of one of our Social Security Disability Clients then you may have noticed that the Medical Source Statement we ask you to complete has changed.  To be clear the Medical Source Statement is not asking whether a healthcare provider thinks their patient is disabled, but rather asks you to opine to the effects of your patient’s condition based on your treating relationship; and, so by law and in practice the Administrative Law Judges (ALJs) regard it highly and give it great weight.  Without your opinion, the task of discerning the effects and limitations of the patient’s medical condition falls upon a non-medically trained ALJ.  Without the guidance of your opinion we frequently see blatantly wrong decisions being made based on a lack of understanding of the effects of the patient’s particular conditions.

Over and over we were finding that certain questions were arising at hearings regarding the specifics on a patient’s need to alternate positions, the need for breaks, the likelihood of absences, and difficulty with focusing and concentration and often unfortunately the medical records and the limited medical knowledge of the non-medical ALJs do not suffice in allowing for an accurate assessment of the impact of the patient’s condition.  The extended form should not take up too much more of a provider’s time, but it will provide valuable information that cannot otherwise be gathered and which will ensure that the ALJ’s decision is accurate and based on the true medical nature of the patient’s condition.

Illinois Takes Step Forward for Uninsured Poor

Now, thanks to the Affordable Care Act and IL Public Act 98-104, more adults are eligible for Medicaid in Illinois. As of January 1, 2014, all Illinois residents between 19 and 64 years of age who are U.S. citizens or who have legal status, who do not have dependent children, and who have annual incomes less than $15,800 for an individual or $21,400 for a couple, are eligible for Medicaid. Enrollment began for adults in October.

This means Illinois will cover all very low-income people in the Medicaid program, including adults without dependent children who do not fit into one of the categories formerly required for adults: persons with disabilities, parents/caretakers of dependent children, or pregnant women. Illinois Medicaid also covers children under its All Kids program.

Unfortunately, for our clients living in Missouri, the state did not opt for expanded Medicaid. The poor and uninsured who are not disabled, pregnant, or are parents/caretakers of dependent children are trapped with few options for medical treatment.

Attacks on Social Security Disability Program

The Social Security Disability Insurance program has taken some serious blows in the national media recently.  On October 6th, CBS newsmagazine 60 Minutes ran a story on the subject.  In the story Steve Kroft perpetuated stereotypes without presenting any factual basis.  What the public was not told is that the CBS producers purposefully ignored the requests of nearly two dozen national disability advocacy organizations, including NOSSCR, the National Organization of Social Security Claimants’ Representatives, to be interviewed to provide a balanced picture.  The producers ignored these requests in favor of presenting a more controversial piece.  The telecast did not even include a response by the Social Security Administration.

What 60 Minutes left out of its program were some very important facts.  The Social Security Disability standard is strict; and statistically, approximately 75% of applicants are denied and even after appeal, 60 percent of applicants are denied benefits.  Favorable decisions are subject to review by an appeals council.  All cases are subject to review every three years.   In reality, individuals with serious and sometimes life-threatening illness wait months if not years to obtain benefits.  The kind of corruption that the 60 Minutes program highlights is not widespread as insinuated.  It is true, that criminals sometime target Social Security, like the recent ring of New York police officers, but no more so than criminals target Medicaid, Medicare, and private insurance companies.  In fact, it is so rare that when it happens it is national news.  If the process was as tainted as 60 Minutes portrayed it, more than 40% of national applicants would ultimately be awarded benefits.

This sensationalized journalism ultimately hurts disabled individuals.  In response to the negative media coverage the Social Security Administration has put pressure on judges.  The result is even more delay.  The law gives the Administrative Law Judges deciding disability cases authority to award benefits to individuals based on their medical records without a hearing.  Quite frankly, some cases are that obvious – think of advanced-stage cancers, amputations, etc.  However, the backlash from these skewed news-programs has made the ALJs fearful of being accused of making hasty decisions.  The result is they have stopped reviewing cases.

We are trying to fight back against these delays and maintain the integrity and honesty of the Social Security process.  Together with the help of our clients’ treating healthcare providers we are able to present a thorough case for our clients in the letter and spirit of the law.  Too bad, 60 Minutes did not come and speak with us, or for that matter almost any other representative of the disabled, then they would have seen an entirely different side to the process. The story is much more complex than the rare bad apple presents.

Internet has Traps for the Unwary

It appears that clever business operators have figured out ways to make easy money off some Social Security Disability claimants.  They sign up claimants on the internet and provide little in the way of services.  Some of these practitioners are engaging in sharp practices.  One advertises “Special Rules for Disabled People over 55.”  Of course, there are different rules for different age people.  It is far easier to represent people 55 to 65 and they are far more likely to be approved on application.  Some businesses craft their web site to look like the Social Security Administration’s site.  People think they are communicating with the government when in fact it is a business.  We looked up one such firm.  It is owned by a guy with an MBA from the Wharton School of Business!

It appears that these firms are signing people up on a twenty-five percent contingency fee and having the client get medical records from their providers and mail them to the firm.  The firm gets fees on the easily approved cases.  Then they either drop the non-approved claimants entirely or farm the case out to a local attorney on a shared-fee basis.  Often the local attorney knows little if any about the practicalities of disability law.  We have met with people who met an attorney for the first time a half hour before a hearing!  The attorney had ordered no updated medical records.  Literally the attorneys do nothing other than sit beside the claimants.

Our office takes all age clients – including disabled children.  We represent people with mental health problems.  We represent people with SSI claims.  On a case by case basis we typically lose money on those particular cases.  We make up the difference on other Social Security Disability cases.  We know the law and the judges.   We have a presence on the internet as well, but we are only taking cases in the region and we follow through – all the way to the U.S. Court of Appeals if necessary.

As always, thank you for your kind attention to our clients.  Thank you especially to those of you who take the time to fill out Medical Source Statements for your patients.  We cannot overstate how important those are.

 

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Nation Association of Consumer Bankruptcy Attorneys
The Missoui Bar
NOSSCR
Illinois State Bar Association