Articles Posted in Following a Favorable Decision in a Social Security case

As we were discussing in part I, there are a multitude of considerations individuals need to take into account following the receipt of a favorable decision.  One of the more important considerations is how one will be able to remain in treatment and what health insurance will be covering your treatment as you move forward.

Medicare insurance entitlement (just like a senior citizen who has reached  retirement age) is available once one has been collecting Social Security Disability Insurance (SSDI) for a period of 24 months (in their 25th month of eligibility to a check).   Accepting Medicare is not required (even though one may see the premium automatically taken out: this can be cancelled with a simple phone call).   However, foregoing Medicare during this enrollment period can result in an increased cost should one choose to enroll at a later date.  If one is already receiving state Medicaid (referred to as Mainecare in Maine, MassHealth in Massachusetts and simply Medicaid in New Hampshire), one may be entitled to apply with their local Department of Human Services office or, in Massachusetts, the Department of Transitional Assistance, so as to request that the State pay the Medicare premium.  In this way, one can have both Medicare and Medicaid health insurance, with the state picking up the tab for both: in this way, Medicare pays first and Medicaid becomes secondary insurance.

Should, however, one lose their Medicaid upon receipt of a favorable decision (which happens if one’s monthly entitlement to SSDI is too high), another health insurance option available is through the Affordable Care Act (ACA),  otherwise known as Obamacare.   The discontinuance of Medicaid as a result of one’s SSDI income would be considered a qualifying event, allowing for enrollment at that time for ACA insurance.

Now that you’ve made it through the process of applying for Social Security disability benefits, it’s important to understand the steps that will take place following the receipt of a favorable decision.   Understanding the procedures which follow can help ensure there are no unexpected surprises down the road and that you are aware of all of the benefits, as well as options, available to you.

If your favorable decision is on your initial application or on reconsideration (in Maine and Massachusetts only, as New Hampshire does not have a reconsideration process and an appeal proceeds directly to hearing),  especially if the claim involves Social Security disability insurance (SSDI) alone with no corresponding Supplemental Security Income (SSI) claim,  it is very common to see that the funds will arrive first by way of direct deposit to your bank account even prior to the receipt of a written decision in your case.   In such a circumstance, the initial or reconsideration decision may be in the form a notice of award  (with no separate notice explaining that there has been a favorable decision) that will come within a week of the funds.

Assuming there are concurrent claims for both Social Security disability insurance and Supplemental Security Income, one will see that their local Social Security office will need to process the SSI claim first (given it’s a welfare claim and, thus, given priority) and may need to set up what is referred to as a pre-effectuation review conference (called a PERC by the local offices) to go over your income and assets during the time period at issue for your SSI claim so as to determine entitlement.  In such a circumstance, it can take a number of months for both the SSI and SSDI amounts to be properly determined given a multi-step process that takes place: 1) the SSI claim is processed first (blind to the amount of SSDI entitlement one may ultimately be determined to be entitled to receive) with an initial payment going out to the claimant, 2) the SSDI is determined but withheld until such time as a redetermination of the SSI entitlement can take place and 3) any overpayment is then deducted from the withheld retroactive SSDI benefits before issuance of a final payment can be made.

As you can well imagine, having handled 1000’s of Social Security disability claims for 27 years out of Maine, Massachusetts and New Hampshire, it has not been unusual for our office to face the very difficult prospect that a client passes away before we’ve been able to prevail to hearing in their case and recover the past due benefits to which they are entitled.  In many circumstances this doesn’t have to meant the end to their case:  in many such cases, we have been able to pursue the claim to a successful conclusion.   There are vast differences between how matters work for purposes of the Title II or Social Security Disability Insurance program (which is based on an individual’s earnings record) and Title XVI or the Supplemental Security Income (which is a welfare, needs based program), which we’ll set out below.

First and foremost, should one pass away while pursuing a Social Security disability claim, the first matter that will need to take place is what’s called a Substitution of Parties, which allows for what is deemed by the Social Security Administration (SSA) to be the next of kin for purposes of who may proceed with the case (and with reference to who may be entitled to receive the past due benefits that are payable up to the date of the claimant’s death).  The SSA requires that an SSA HA-539 Substitution of Parties form be filled out and that a death certificate accompany the form.

With respect to the substitution of parties, the regulations spell out the following order of eligibility: 1) to the spouse (if living in the household at the time of death or if entitled to a monthly benefit under the deceased’s earning’s record) at the time of death, 2) to any children entitled to receipt of  a monthly benefit at the time of the claimant’s death, 3) to the parent/parents entitled to receipt of a monthly benefit on the earnings record at the time of the claimant’s death, 4) to a spouse who does not meet the requirements listed option one, 5) to any children who do not meet the requirements of option 2 and 6) to any parent who does not meet the requirements of section three and 7) to the representative of the claimant’s estate.   The SSI substitution of parties rule is much stricter, given the nature of the benefit (being a welfare check, and with no dependent/family entitlement available under this program): the claim may only be pursued by the claimant’s spouse (assuming they were living in the same household as the claimant as of the date of death or during the preceding 6 months claim).  Assuming the claimant is a disabled child for purposes of an SSI claim, a substitution of party in the form of a parent who was living in the same household as the child at the time of death or during the 6 months preceding death would be the only appropriate option.  Assuming there exists an interim assistance agreement requiring repayment out of the recovery of SSI benefits, a case pending at the hearing level before an Administrative Law Judge (ALJ) may still proceed.  Likewise, while a spouse or the governmental entity holding an interim reimbursement lien interest may be the only ones entitled to recover financially in an SSI claim, it may be beneficial for the spouse to pursue the SSI claim for purposes of a favorable decision so as to allow for automatic entitlement to Medicaid  (Mainecare in Maine, Medicaid in NH and Mass Health in Massachusetts).

The intricacies of the Social Security disability are extensive and endless.  Without the benefit of good legal advice, you can end up losing thousands of dollars even at the end of your Social Security disability case.   This is another example of why going it alone can cause one to have regrets later on.

Whether you live in Maine, Massachusetts or New Hampshire, Social Security disability claimants are many times faced with the need to apply for welfare assistance in order to make ends meet.  Whether it’s transitional assistance through the state,  such as Emergency Aid to the Elderly, Disability and Children (EAEDC) in MA, or the need to apply for general assistance through the City of Portland, Maine one will be required to sign what is called an interim reimbursement lien agreement and apply for Supplemental Security Income (SSI) in order to qualify for this interim cash assistance.   What is expected by the state or local entity is that at the end of your Social Security disability case, if there is recovery of SSI, then the first check for retroactive benefits will be going back to the state or town/city to repay them for the assistance they have paid out.

Interestingly, such reimbursement is only payable out of SSI benefits and not out of Social Security disability insurance benefits (SSDI). It is important to understand that when a claimant receives a favorable decision and has both SSI and SSDI claims pending, the SSI claim is always processed first.  Because of this, the processing of the benefits does not take into account and remains blind to whether the claimant will be entitled to retroactive SSDI benefits that may in fact preclude entitlement to any SSI benefits at all.

As we discussed in our prior blog entry, there are a number of issues to remain vigilant about following the receipt of a favorable Social Security decision.  As was mentioned, periodic reviews will take place as to whether an individual remains disabled (and thus remaining in consistent and zealous treatment with your providers is important to document how one remains disabled).  Likewise, providing updated records of one’s earnings should you be able to return to work is important so that the Social Security Administration (SSA) can keep track of the extent to which you use up Trial Work Period months.  In this blog entry, we’ll continue our discussion on how the failure to report income and/or assets to SSA following the receipt of a favorable decision can have very serious consequences. Continue reading

While prevailing in your Social Security disability claim may be a huge relief, it is important to remember that there are certain obligations one continues to have with the Social Security Administration (SSA).  Likewise, there are a number of considerations one needs to take place moving forward to ensure that one does not experience a problem down the road with SSA.   With that in mind, we’ve made a checklist to assist you.  Continue reading

One of the frequent questions our office receives from claimants we represent in their Social Security disability and Supplemental Security Income claims.  First and foremost, the answer every lawyer or claims representative should be providing to their claimant is a resounding yes.  One should always attempt to work if they have that option: whether you’re in the initial stages of filing a Social Security claim or about to appear before an Administrative Law Judge (ALJ).  Unfortunately, I see that some representatives are not as clear when answering that question and I believe it provides both confusion and, down the road, what could be huge disappointment to their client if they are not provided with a complete sense as to how a return to work can prove to be a win-win proposition. Continue reading

An application for Social Security disability insurance benefits (SSDI) and Supplemental Security Income (SSI) can assist with obtaining health insurance benefits in a number of different ways.   Whether it’s obtaining Medicaid Insurance (which is a Federal program administered by the states, and which is called Medicaid in New Hampshire, Mainecare in Maine and Mass Health in Massachusetts) or, ultimately Medicare (the Federal health insurance program that provides benefits not only to those who have hit retirement age, but also to certain qualified individuals who have been approved for SSDI Benefits, the potential additional benefit associated with an application for SSDI and SSI cannot be ignored.   Continue reading

As we approach Father’s day this year, I thought it would be a good time to discuss the various benefits available to family members of individuals found disabled and entitled to benefits under the disability insurance program.  The term of art used by the Social Security Administration for this family benefit is called “auxiliary” benefits which are based on the earnings record of the “master” beneficiary: that is to say, based on the earnings record of individual found to be disabled.   Continue reading

Richard Dudley, via FreeimagesThe process of applying for benefits through the Social Security Disability Insurance (SSDI) program in Massachusetts and the rest of the United States is often complicated and lengthy. Once a person files an application, it can take months for the Social Security Administration (SSA) to make an initial determination in their case. Considering that few claims are approved at the initial stage, the process can take much longer once you factor in requests for reconsideration and hearing before an Administrative Law Judge (ALJ): in many cases it can take 2 years or longer to receive a final approval at the hearing level.  This is not to mention those cases where appeals beyond a judge hearing level take place and ultimately get approved following an Appeals Council or Federal District Court process (which may involve an additional hearing before an ALJ.

Once the SSA approves your claim, however, the claimant will be owed retroactive benefits for the period of time they have been waiting for their final approval.  These past-due SSDI benefits are commonly known as “retroactive benefits.” Three factors may affect when your period of eligibility for back pay begins:  (1) the date you applied for benefits; (2) the alleged onset date (AOD) of your disability and the established onset date (EOD) determined by the SSA, which might not be the same date; and (3) the mandatory five-month waiting period from your EOD to the date SSDI benefit payments are payable.

Backlogs in SSDI Applications

The SSDI program is one of the most backlogged programs in the federal government. A report in the Washington Post in October 2014 stated that the program had a total of 990,399 claims awaiting attention. A 2008 review of backlogs by the SSA’s Inspector General found that the agency took an average of 131 days to process initial SSDI applications. Requests for reconsideration took an average of 279 days, and appeals to an administrative law judge (ALJ) took 811 days on average. Claims that went before the SSA Appeals Council or into the federal court system took much longer. The SSA’s back pay system is intended to compensate beneficiaries who are forced to wait for benefits.

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