Time Delays with Proceeding to Administrative Hearing in New Hampshire and Elsewhere

It is important to understand that proceeding to hearing in New Hampshire and elsewhere is not a quick or easy process.  In New Hampshire, upon facing an initial denial (which can take on average 3 to 5 months from the time the claim is initiated), one is entitled to appeal by requesting a hearing before an Administrative Law Judge.  In Maine and Massachusetts, one must first undergo a request for reconsideration (which process presently carries with it an 85+% denial rate).  Going through the reconsideration process can take another 3 to 6 months in those states, and further delay an ultimate decision at hearing.  There are a number of important considerations to take into account if one is awaiting hearing.

First and foremost, one should understand that from the time one requests a hearing to the time a hearing is held can take upwards of a year (and in some cases, we’re seeing it take as long as 15 months).  There have been additional backlogs encountered as a result of staffing issues encountered by the hearing offices (not to mention an increase in the number of cases presently awaiting hearing).  One of the processes that has been established to try and cut down on the delays is what’s called a hearing by way of Video Teleconference (VTC).   Within a month or two of requesting a hearing, the Office of Disability Adjudication and Review will send along to you a form whereby one can object to proceeding in this manner by returning a form to the hearing office within 30 days.  Hallex Rule I-5-1-20

The decision whether to proceed by way of VTC is one which should be made in consultation with your lawyer.  While the administrative hearing process may be somewhat expedited by allowing for a hearing to take place in this fashion, there are a number of considerations one needs to take into account. For one, a VTC hearing means that you will appear in front of an Administrative Law Judge (ALJ) by television screen: you will not get a face to face meeting with the judge.  As one can well imagine, this is quite an impersonal way to appear in front of a judge and tell your personal story.  Given the manner in which the hearing is held and the fact that there may be other witnesses called by the ALJ to testify, you may not always see the judge throughout the course of the hearing.  Moreover, the ALJ will not get to see your facial expressions as they would if you were to appear in person.   Just as important to know is the fact that the ALJ may be from another region of the country where they are not familiar with the doctors in your area, the barriers to healthcare that may exist in your area or with your local attorney.  Even more important than both of these issues is the fact that your attorney may have no knowledge of or familiarity with the ALJ deciding your case: this may cause your attorney with additional discomfort and a sense of uncertainty in preparing for hearing as they will be unfamiliar with the AJL’s preferences and predilections.

Consequently, our firm in the vast majority of cases will object to proceeding by way of VTC as it is not, in most cases, in one’s best interest.  There are other rules set for the hearing office which do allow for cases to be deemed “critical” cases and, thus, to be set for hearing on a more expedited basis in certain exceptional circumstances.  Hallex Rule I-2-1-40: Critical Cases  Examples of such critical cases include whether the claimant has a terminal illness, is a Veteran who has been found 100% disabled by the Veteran’s Administration and is deemed permanently and totally disabled, is a wounded warrior or military casualty from service after October 1, 2011 or is deemed to be in a “dire need” financial circumstance.

In order to qualify as “dire need,” one needs to show one of the following circumstances:

  • The claimant is without food and is unable to obtain it.
  • The claimant lacks medicine or medical care and is unable to obtain it, or the claimant indicates that access to necessary medical care is restricted because of a lack of resources.
  • The claimant lacks shelter (e.g., without utilities such that his or her home is uninhabitable, homelessness, expiration of a shelter stay, or imminent eviction or foreclosure with no means to remedy the situation or obtain shelter).

It is important to understand that the hearing offices will look to see that individuals are applying for benefit assistance through their town, their state agencies such as their state department of health and human services office and other non-profit agencies so as to attempt to receive interim assistance.  In Massachusetts, for example, the state provides for interim assistance to those who are disabled from working and are in need through their local Department of Transitional Assistance office.  Benefits can include cash assistance called Emergency Aid to the Elderly Disabled and Children (EAEDC) and food stamps.  In New Hampshire, unfortunately, assistance to those that are short term disabled is much less available. In most cases, unless one has children in the household they need to care for, one will find if they live in New Hampshire they are without options for interim assistance and may very well find themselves in dire need if they do not have the benefit of friends or family caring for them.   In such cases, it may be necessary to push for their case to be placed on an expedited track.

If you are awaiting a hearing before an ALJ, it is important to get the advice and assistance of a lawyer who can advise you of your rights as they pertain to the hearing procedures.  Should you require such assistance, you should contact an experienced and aggressive disability lawyer who can ensure your rights are protected.  For more than 26 years, we’ve been protecting the rights of the long-term injured and disabled.  We are only a phone call away at 1-800-773-8622 for a free consultation as to how we may be able to assist you.