Category Archives: Disability

Navigating Social Security Disability: Understanding Waiting Periods and Medicare Eligibility

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Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are vital lifelines for individuals unable to work due to medical conditions. Understanding the nuances of these programs, including waiting periods and Medicare eligibility, is crucial for those seeking support.

SSDI Waiting Period:

For SSDI applicants, there’s a five-month waiting period before receiving benefits. This waiting period, however, doesn’t apply to SSI recipients. The waiting period begins on your alleged onset date, the day you claim your disability began. If proven, this date marks the start of the five-month waiting period. Should your onset date precede your application, the SSA subtracts five months from your past due benefit amount.

Certain conditions, like ALS or Lou Gehrig’s disease, waive the waiting period. Additionally, if you attempt to return to work and then find yourself unable to continue due to your disability, benefits can be reinstated without another waiting period, provided it’s within five years. Moreover, if you’re applying as the child of a disabled worker, you’re exempt from the waiting period.

Medicare Waiting Period:

Those receiving SSDI must satisfy a two-year waiting period for Medicare coverage, unless they’re 65 or older. For instance, if approved for SSDI at 64, Medicare coverage will commence at 65. However, if applying at any other age, the full two-year wait is necessary. Exceptions exist for life-threatening conditions like ALS or End-Stage Renal Disease (ESRD), where the waiting period is waived, and coverage begins sooner. These exceptions recognize the urgent need for medical care in such cases.

For legal assistance with a pending Social Security Disability Appeal, call attorney D. Scott Gordon at 804-440-6557 or visit dsgordonlaw.com

Are Employer’s Subject to HIPPA?

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The Health Insurance Portability and Accountability Act (“HIPAA”) is landmark legislation designed to safeguard individuals’ protected health information (“PHI”). HIPPA’s primary goal is to ensure the privacy and security of sensitive medical data while also facilitating the smooth flow of healthcare information.

Key aspects of HIPPA:

Privacy Rule: The Privacy Rule establishes national standards for the protection of PHI, including individual rights to access their health information, control its disclosure, and request corrections. Covered entities must implement policies and procedures to ensure the privacy of PHI and provide patients with notice of their privacy practices.

Security Rule: The Security Rule outlines requirements for safeguarding electronic PHI (ePHI) through administrative, physical, and technical safeguards. Covered entities must conduct risk assessments, implement security measures to protect against unauthorized access, and have contingency plans in place to respond to emergencies.

Breach Notification Rule: The Breach Notification Rule requires covered entities to notify affected individuals, the Secretary of Health and Human Services, and, in some cases, the media, following a breach of unsecured PHI. Notification must occur without unreasonable delay and no later than 60 days following discovery of the breach.

Enforcement Rule: The Enforcement Rule outlines procedures for investigating complaints of HIPAA violations and imposing penalties for non-compliance. Penalties can range from fines to criminal charges, depending on the severity and intent of the violation.

Business Associate Agreements: Covered entities must enter into contracts, known as business associate agreements, with vendors and other entities that handle PHI on their behalf. These agreements outline the responsibilities of the business associate in protecting PHI and establish liability for breaches.

Who is Subject to HIPAA?

HIPAA applies to “covered entities” and “business associates.” Covered entities include healthcare providers, health plans, and healthcare clearinghouses. Business associates are entities that handle PHI on behalf of covered entities, such as third-party administrators and billing companies.

Examples of Violations:

HIPAA violations of the Privacy Rule can occur in various ways, often involving unauthorized access, use, or disclosure of protected health information (PHI). Here are some examples:

Unauthorized Access: An employee at a healthcare facility accesses a patient’s medical records without a legitimate reason or authorization, simply out of curiosity or personal interest.

Improper Disclosure: A healthcare provider discusses a patient’s diagnosis or treatment plan in a public area where others can overhear, violating the patient’s right to privacy.

Lost or Stolen Devices: A laptop or mobile device containing unencrypted PHI is lost or stolen, potentially exposing sensitive patient information to unauthorized individuals.

Emailing PHI: Sending unencrypted emails containing PHI to individuals who are not authorized to receive such information, thereby risking interception or unauthorized access.

Inadequate Safeguards: Failing to implement appropriate security measures to protect PHI, such as leaving paper records containing patient information in an unsecured location accessible to unauthorized individuals.

Improper Disposal: Discarding paper records or electronic devices containing PHI without properly shredding or securely wiping the data, leaving sensitive information vulnerable to unauthorized access.

Access by Unauthorized Individuals: Allowing individuals who are not involved in the patient’s care, such as friends or family members, to access their medical records without proper authorization.

Does HIPAA Apply to Employers?

In most cases, employers are not considered covered entities under HIPAA unless they also operate as healthcare providers or health plans. However, there are exceptions. For instance, if an employer sponsors a group health plan, it becomes subject to HIPAA’s privacy and security rules regarding the health information it collects and maintains.

Notwithstanding, employers may find themselves handling PHI when they offer health plans to their employees or when they engage in functions such as the administration of workers’ compensation claims, sick leave, or wellness programs. In these instances, while HIPAA itself may not apply, employers still should adhere to stringent standards to protect the confidentiality, integrity, and security of the health information in their care. While HIPAA may not directly apply to employers, other federal and state laws govern the handling of employee health information, such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).


Policies to Protect Employee Health Records

Despite not being directly subject to HIPAA, employers still should implement robust policies and procedures to safeguard employee health records. Here are some key steps to consider:

Limit Access: Only designated individuals with a legitimate need should have access to employee health records. Implement strict controls to prevent unauthorized viewing or disclosure.
Employee Training: Educate employees about the importance of confidentiality and their responsibilities in handling sensitive health information. Regular training sessions can reinforce compliance with privacy policies.
Data Encryption and Security: Utilize encryption and other security measures to protect electronic health records from unauthorized access or cyber threats.
Written Policies: Develop clear and comprehensive policies outlining how employee health information will be collected, stored, and accessed. Include procedures for handling requests for information and responding to breaches.

Written Policies: Develop clear and comprehensive policies outlining how employee health information will be collected, stored, and accessed. Include procedures for handling requests for information and responding to breaches.

While HIPAA may not directly apply to employers in most cases, Employers still have a legal and ethical responsibility to protect employee health information under other regulations. By implementing robust policies and procedures, employers can uphold the privacy rights of their employees while mitigating legal risks and maintaining trust in the workplace.

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What is the “Interactive Process” for Reasonable Accommodation under the Americans with Disabilities Act?

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The Americans with Disabilities Act (“ADA”) requires that employers provide reasonable accommodation to qualified individuals with disabilities, provided that the accommodation does not cause undue hardship. A reasonable accommodation enables the qualified individual with a disability to perform the essential functions of the subject position. Common reasonable accommodations under the Americans with Disabilities Act (ADA) are adjustments or modifications that enable individuals with disabilities to perform their job duties effectively.

What are Examples of Reasonable Accommodations?

Accommodations can vary widely depending on the individual’s needs and the nature of the job, but they often include changes such as:

Modifying Work Schedules: This could involve altering start and end times, allowing for flexible scheduling, or providing part-time work options.

Job Restructuring: This may include reallocating or redistributing non-essential job functions, changing job duties, or redefining roles and responsibilities.

Equipment or Device Modification: Providing or modifying tools, devices, or office equipment to assist an individual in performing their job tasks.

Work Environment Adjustments: Making changes to the physical workspace, such as ergonomic furniture or accessible facilities, to accommodate mobility or sensory impairments.

Policy Modifications: Altering workplace policies to accommodate the needs of individuals with disabilities, such as allowing service animals in the workplace or modifying attendance policies.

Providing Assistive Technologies: Offering software or hardware that assists individuals with disabilities, such as screen readers, voice recognition software, or TTY devices for communication.

Communication Aids: Ensuring effective communication by providing qualified interpreters, note-takers, or transcription services.

Accessible Formats: Providing materials in accessible formats, such as Braille, large print, or audio recordings.

Leave: Granting time off for medical appointments, treatment, or recovery related to a disability.

Reassignment: Moving an employee to a vacant position for which they are qualified if they are unable to perform their current job even with accommodations.

It’s important to note that what constitutes a reasonable accommodation is highly individualized and must be determined on a case-by-case basis. The goal is to enable the employee to perform the essential functions of their job without causing undue hardship to the employer.

How Does the ADA Interactive Process Work?

To address a need for accommodation, the ADA mandates that employers engage in an “interactive process” to identify reasonable accommodations for employees with disabilities. This process is a collaborative dialogue between the employer and the employee to understand the limitations arising from the disability and explore the types of accommodations that could enable the employee to perform essential job functions. The process should be flexible and tailored to the individual’s specific needs.
The interactive process begins when an employee signals the need for an accommodation, either verbally or in writing. Employers should respond promptly, ideally documenting the communication to ensure a clear record of the request and subsequent discussions. During the interactive process, it is crucial for employers to consider the employee’s suggestions, as they are often most familiar with their own needs and potential solutions. However, the employer is not bound to provide the specific accommodation requested if there are other effective alternatives available.

Can the Employer Request Medical Information?

Under the ADA, employers are limited in their ability to request medical information from employees. Generally, employers can request medical information when it is job-related and consistent with business necessity. This need for additional information typically occurs when an employee requests an accommodation under the ADA, and the disability or need for accommodation is not obvious. In such cases, the employer may ask for documentation to understand the nature of the disability and the need for accommodation. However, employers should not request an employee’s complete medical records, as they are likely to contain information unrelated to the disability and need for accommodation. The request for medical information must be specific to the reason for the accommodation and cannot be overly broad.

If an employee provides incomplete or insufficient medical documentation in relation to a request for reasonable accommodation under the ADA, EEOC guidance suggests that the employer has the right to ask for the necessary information to substantiate the employee’s claim of a disability and the need for accommodation. The employer should inform the employee why the documentation is insufficient and allow a reasonable amount of time for the employee to provide the necessary details. If the employee fails to provide the requested documentation without a valid reason, the employer may not have a duty to continue the accommodation process. However, it is crucial for the employer to ensure that the request for additional documentation is made in good faith and not as a means to delay or deny the accommodation.

If medical documentation is necessary, employers should keep all medical information and discussions related to the accommodation confidential, as required by the ADA. All such records should be kept in separate files apart from regular personnel records to ensure confidentiality and access should be limited to authorized personnel only. It is important for employers to train managers and HR personnel on the ADA’s requirements, ensuring that requests are handled appropriately and that the company’s actions are in compliance with federal law.

How Does an Employer Evaluate A Request for Reasonable Accommodation?

The mutual goal of the interactive process is to find an accommodation that serves the employee need, without imposing an undue hardship on the operation of the business. Undue hardship refers to significant difficulty or expense relative to factors such as the employer’s size, financial resources, and the nature of the operation. Small employers may face unique challenges in providing accommodations due to limited resources. Employers can assess the reasonableness of an accommodation under the Americans with Disabilities Act (ADA) by considering several key factors, including whether the requested accommodation will impose a direct threat to the health or safety of others, decrease efficiency in other jobs, cause other employees to carry a significantly increased workload, or conflict with another law or regulation.

In all cases, the ADA does not require an employer to eliminate an essential function of the employee position or lower production standards that are applied uniformly to employees with and without disabilities. The reasonableness of an accommodation is assessed on a case-by-case basis, taking into account the unique circumstances of each request. Employers should consider the effectiveness of the accommodation in enabling the employee to perform their job duties, as well as the accommodation’s impact on the operation of the business. Factors such as the nature and cost of the accommodation, the overall financial resources of the facility or the employer, the number of employees impacted, disruption to normal business processes, and the effect on resources should be assessed. Employers also may consider how an accommodation effects other employees, though the mere fact that an accommodation might impact other employees’ workloads or morale does not automatically constitute undue hardship. Employers also cannot base their decisions on the possible unfounded fears, stereotypes, or prejudices of other workers. Instead, they should focus on the accommodation’s objective impact on the operation of the business.

If a particular accommodation seems too burdensome, employers must evaluate whether other options could meet the employee’s needs without imposing an undue hardship. This assessment may involve looking at alternative accommodations that are less costly or disruptive to the business. The ADA does not require employers to provide the exact accommodation requested by the employee if another effective accommodation is available that meets the employee’s needs. In some cases, a temporary or trial period for the accommodation might be appropriate to evaluate its impact.

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Richmond Employment Lawyer

What is the Role of Disability Determination Services (DDS) in Social Security Disability Claims?

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Social Security disability claims usually begin at the local Social Security Administration (SSA) field office where the applicant lives. The SSA field office collects and processes applications for disability benefits through various channels, including in-person, mail-in and online applications. SSA field offices first verify non-medical eligibility requirements, such whether the applicant has acquired enough prior work credits to receive SSDI benefits or whether an applicant’s current earnings exceed the threshold for gainful employment.

Once non-medical eligibility is verified, the SSA field office forwards the case to a separate Disability Determination Service office (DDS) for medical evaluation of disability. Though federally funded, DDSs operate as State agencies. In Virginia, Virginia Disability Determination Services partners with SSA and the Virginia Department of Social Services to review and make initial decisions on eligibility for SSDI, SSI, and Medicaid programs. Local DDS offices serve as critical gatekeepers in the disability evaluation process. Their primary responsibility is to assess medical evidence and make the initial determination as to whether a claimant is disabled or blind under the law.

At the initial application stage, DDSs seek and acquire evidence from the claimant’s identified medical providers, relieving the applicant of the burden and expense of ordering their own medical records. If that evidence is insufficient, DDS may order and require a consultative examination (CE) to obtain additional medical assessments and opinions. DDS then forwards the cumulative file information to reviewing physicians to evaluate the evidence and make recommendations regarding the severity of the applicant’s condition and their residual functional capacity. After making a final determination, DDS returns the case to the local SSA field office for appropriate administrative action.

If DDS determines that the claimant is disabled, SSA proceeds to compute and pay-out the subject benefits. If the DDS finds the claimant not disabled, the claimant may appeal the adverse decision though several stages. Following the first appeal, DDS will reevaluate the claim on Reconsideration. If DDS upholds its denial, a claimant may appeal again and then receive an evidentiary hearing before an SSA Administrative Law Judge.

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Richmond Socials Security Disability Lawyer

Can You Qualify for Social Security Disability Benefits with Epilepsy?

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Living with epilepsy poses unique challenges, especially when it hinders the ability to maintain employment. Social Security Disability benefits can provide crucial financial support for individuals grappling with the impact of epilepsy on their daily lives.


Proving Your Claim:


To be considered for Social Security Disability benefits due to epilepsy, you must present medical documentation demonstrating that your epilepsy prevents you from working at a gainful employment level. Additionally, you need to have accumulated enough work credits through your employment history. Relevant medical conditions would include timing and frequency of seizures; post-seizure Issues, such as impaired thinking, fatigue, or disruptions to daily activities; and continued seizures despite medication.


Understanding Epilepsy Under SSA Listing 11.02:


The Social Security Administrations Blue Book serves as a comprehensive guide that outlines the conditions that qualify automatically for Social Security Disability benefits. As characterized in the Blue Book, epilepsy is a pattern of recurrent and unprovoked seizures that are manifestations of abnormal electrical activity in the brain. There are various types of generalized and “focal” or partial seizures. The most common potentially disabling seizure types are generalized tonic-clonic seizures and dyscognitive seizures. Generalized tonic-clonic seizures are characterized by loss of consciousness accompanied by a tonic phase. Dyscognitive seizures are characterized by alteration of consciousness without convulsions or loss of muscle control. To meet the automatic qualification criteria for this listing, you must demonstrate:


A diagnosis of epilepsy, as documented by a detailed description of a typical seizure and characterized by A, B, C, or D below:


A. Generalized tonic-clonic seizures occurring at least once a month for at least 3 consecutive months despite adherence to prescribed treatment.


OR


B. Dyscognitive seizures, occurring at least once a week for at least 3 consecutive months despite adherence to prescribed treatment.


OR


C. Generalized tonic-clonic seizures, occurring at least once every 2 months for at least 4 consecutive months despite adherence to prescribed treatment; and a marked limitation in one of:
-Physical functioning;
-Understanding, remembering, or applying information;
-Interacting with others;
-Concentrating, persisting, or maintaining pace; or
-Adapting or managing oneself


OR


D. Dyscognitive seizures occurring at least once every 2 weeks for at least 3 consecutive months despite adherence to prescribed treatment ; and a marked limitation in one of the following:
-Physical functioning;
-Understanding, remembering, or applying information;
-Interacting with others;
-Concentrating, persisting, or maintaining pace; or
-Adapting or managing oneself.


Successfully navigating the Social Security disability benefits process for epilepsy requires a nuanced understanding of the specific criteria outlined in Listing 11.02 and alternative argument for qualification. By providing detailed documentation and adhering to the prescribed treatment, individuals with epilepsy can enhance their chances of qualifying for benefits. Please contact my office directly should you wish assistance with you claim.

How to Appeal a Denial of Long-Term Disability Benefits

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What Should You Do if an Insurance Company Denies Your Claim for Long-Term Disability Benefits?

Suffering from a long-term disability can be an incredibly challenging and life-altering experience. Thankfully, many employer’s offer individuals long-term disability (LTD) insurance benefit to provide financial support during these difficult times. In some cases, these plans may provide initial benefits to persons who are not immediately eligible for Social Security Disability Benefits.


Understanding Long-Term Disability Policies and ERISA:

If your LTD plan is issued through your employer, the policy most likely is governed by the Employee Retirement Income Security Act (ERISA), which can present a unique set of challenges. ERISA is a federal law that establishes minimum standards for retirement, health, and other welfare benefit plans offered by employers. ERISA also impacts the rules and regulations surrounding your claim process and subsequent appeals. ERISA provides protection for both the plan participants and the insurance companies, aiming to ensure fairness in the administration of benefits.


ERISA imposes certain requirements on insurance companies, such as providing participants with plan information, a clear explanation of the claim denial, and a fair appeals process. However, it also sets deadlines and limitations on the claimant’s ability to present evidence, making the claim process complex and challenging to navigate without a proper understanding of it’s procedure. Importantly, ERISA mandates that claimants must exhaust an insurance company’s internal appeals process before pursuing any legal action. Your first objective should be to familiarize yourself with the specific requirements and deadlines for submitting an appeal, which are usually spelled out at the end of the denial letter. While plans may vary, in most cases you have only 180 days to submit your initial denial appeal. However, filing an immediate appeal also can be a mistake. You must use this 180 day window to properly develop an appeal if you are to expect a different result. For this reason, you should contact an attorney immediately after receiving the denial letter.


Steps to Take if Your Long-Term Disability Claim Is Denied:

1. Carefully read the denial letter from the insurance company, as it should outline the reasons for the denial and the procedures for submitting an appeal. Understanding the insurance company’s rationale is crucial in preparing your appeal. For example, did they rely upon the opinion of an outside medical consultant or did they just not receive all of your medical information in a timely manner?

2. Request a copy of the insurer’s file, including any adverse medical opinions upon which they relied to deny your claim.

3. Collect all relevant medical records, test results, and other evidence that support your disability claim.

4. Consult with your healthcare providers to ensure you have a comprehensive and up-to-date record of your condition. If the insurance company lists the opinion of an outside medical consultant, ask your own provider whether they agree or disagree with those conclusions. Your doctor’s can play a crucial role in responding to a denial, but a short letter stating you are disabled may not be sufficient. It is important to ask the right questions.

5. Eventually, you must submit an appeal letter that addresses the reasons for the denial and provides additional evidence to support your disability claim. Prior to sending in your appeal, consider seeking assistance from an experienced attorney who specializes in disability and ERISA claims.

6. In cases where all other options have been exhausted, filing a lawsuit may be the final course of action. Understand that ERISA lawsuits usually are limited to a review of the administrative record. Do not assume that you will be able to introduce new and additional evidence to a neutral jury, which is why the proper development of the initial administrative appeal is often the key to a successful claim.

When Can You Request Work Accommodations Under the Americans With Disabilities Act (ADA)?

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Under the Americans with Disabilities Act (ADA), employers with 15 or more employees are required to provide reasonable accommodations to qualified employees with disabilities. Reasonable accommodations are adjustments or modifications to a job or work environment that enable an employee to perform the essential functions of the employment position. A reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment. It does not typically require the elimination of an essential function of a job, the displacement of other employees, or the creation of a new light-duty job.

The ADA does not require employers to provide accommodations that would cause an undue hardship, which is defined as an action that requires significant difficulty or an unsustainable expense. Additionally, the ADA does not require employers to provide accommodations that would pose a direct threat to the health or safety of others in the workplace.

The purpose and intent of reasonable accommodations is to provide employees with disabilities an equal opportunity to enjoy the privileges of employment when they are capable of performing the essential functions of a position. Some specific examples of reasonable accommodations might include:

• Installing a ramp to make a workplace wheelchair-accessible
• Modifying a restroom so a worker with disabilities can use it
• Allowing a flexible work schedule
• Reassigning a qualified employee to a vacant position

The exact procedure for requesting accommodations under the ADA may vary by employer, but the burden is upon the employee to initiate the request. Employees must request accommodations by informing their employer of their basic disability and the need for an accommodation. The request should be made in writing and should include a description of the accommodation needed.

Upon notice of the request, employers must engage in an “interactive process.” The interactive process involves a discussion between the employer and employee to identify the employee’s limitations and how they impact the employee’s ability to perform the job. If needed, the employer may request additional information from the employee’s healthcare provider to determine the medical and job related conditions. Although healthcare providers might suggest specific accommodations, employers are not required to provide the exact accommodation requested by the employee if there are other effective accommodations that also meet the employee’s needs.