The information provided in the question and answer format as Frequently Asked Questions (FAQ's) are provided for informational purposes only. They describe generally how the systems work. They are not intended to be legal advise in any specific case, since every case presents a constellation of facts which might make other factors pertainent in one's own situation. If you have any questions about your situation, you should arrange to meet with an attorney or other competent professional to review the issues in your case.
Social Security Administration
Q. What is a disability?
A. To receive Social Security Disability (SSD) or Supplemental Security Income (SSI), you must have a physical or mental condition, or any number of conditions, that keep you from working. You must be unable to work for twelve (12) months or more at any job which is considered "substantial gainful activity" (read below for more information on SGA).
Q. What can I do if my social security claim is denied?
A. There are a number of "stages" where your social security claim
may be decided. The federal Social Security Administration sends its claims to
a state agency called the Disability Determination Service (DDS) to decide if
you are disabled. If your claim is denied by DDS, you have the right to file an
appeal. You have sixty-five days to file your appeals. The only way you can
appeal after that is if you have good cause for a late appeal. The first appeal
is a "Request for Reconsideration" and will begin the second stage of
deciding your claim. In Massachusetts and most other states will send your
claim back to the Disability Determination Services where it will give further
consideration to your claim, including to any new medical records it receives.
If you are denied again, have the right to appeal the decision. An appeal after
Reconsideration begins the third stage of deciding your claim. This third stage
of appeal is a "Request for a Hearing before an Administrative Law
Judge". This also must be filed within sixty five days. Beyond the
hearing, the decision can be reviewed for legal error. The issue is no longer
if you are disabled or not, but whether the Judge followed the legal
requirements in issuing his decision. The case can be appealed, first to SSA's
own Decision Review Board, then to U.S. District Court, and finally to the U.S.
Court of Appeals.
NOTE: New Hampshire is one of a few "test" states where there is no second stage, and where an initial denial goes directly to the hearing stage.
Q What can you do to help me to obtain Social Security benefits?
A. That depends on the stage of your claim. If you are at the hearing stage, or appealing after a hearing decision, the answer is clear. Social Security has many regulations and policies which apply to how it makes its decisions. These are important to understand in handling a case and knowing which evidence is important, and which is not. Medical evidence must be presented to address the requirements in the regulations. The data shows that when someone tries to handle a hearing on their own- generally just bringing medical records to the proceeding- they stand a greatly reduced chance of winning their case.
Q. Should I get a lawyer to help me before the hearing stage?
A. At the initial and reconsideration stages the agency is active in gathering information, while at the hearing stage you must present most or all of the evidence of your disability. For many, particularly those who have previously been denied, individuals over 50 (due to the agency's vocational rules), or people not comfortable with writing in English, a lawyer may be quite helpful. Relatively few people have attorneys at the first stage; more do at the reconsideration stage. It is not true, as the myth has it, that everyone is denied when they first apply. Approximately 40-50% of the initial disability claims are approved, most of whom do not have attorneys. However, some people may benefit by having attorneys at the first stage. If they win at this point with counsel the attorney fee is lower, since it is based on the size of the retroactive payment.
Q. Is there a fee for your services?
A. Yes, but for cases where you are not yet paid benefits, most commonly in
a disability claim in which you have been denied, you do not have to pay unless
you win. The fee is 25% of your retroactive payments up to a cap set by the
Commissioner. There are cases where there is no retroactive payment. For
instance, if you are disputing an overpayment or a termination of benefits,
there is no retroactive payment. You would normally pay an agreed sum for
representation in these types of cases at the beginning of the case. It is kept
in escrow until social security approves the attorney’s fee. This office will
not charge you for representation in these kinds of cases unless you obtain a
substantial benefit from our representation.
Q How is the SSA hearing different from one in Court?
A. SSA hearings, before the Office of Disability Adjudication and Review, are informal. They are confidential, meaning that members of public cannot be in the room nor have access to the testimony there. Generally, the only people in the room are you, your lawyer, the hearing monitor, and sometimes a vocational expert and/or a medical expert which the agency wants to testify in your case. The rules of evidence do not apply. The person hearing your case is an Administrative Law Judge (ALJ). Even if you have a lawyer, the ALJ is responsible for assuring that the hearing is fair and the record contains essential information. However, the ALJ is not responsible for getting all of the evidence and testimony in favor of your disability, like a lawyer or advocate would.
Q. What is the difference between SSI and SSD?
A. SSI, Supplemental Security Income, is a public assistance program available to people who are disabled, blind, or over 65. In order to receive benefits, you must have income and resources within SSA's guidelines. SSD, Social Security Disability is an insurance benefit which you have paid for out of your pay check, through the FICA deduction. It pays you in the event of disability, blindness, or when you reach your designated retirement age. Generally, it covers you approximately five years after you stop work. Both benefits have the same standards of disability.
Q. Can people addicted to drugs and/or alcohol get disability benefits?
A. Yes. One can receive disability benefits from SSA, so long as s/he would be considered disabled anyway, without any drug and alcohol use. This is a very complicated issue, since it is often hard to separate how someone might be functioning if they stopped using substances. If one clean and sober already, the past use of substances should not be used against them in judging their current condition.
Q. If I am still working can I apply to get SSA benefits?
A. Only if you are earning less than what SSA considers "substantial gainful activity". This is a complicated concept. Often it is evaluated by how much you earn. SSA published a figure is adjusted annually and for 2009 is $980/mo for disability applicants and recipients and $1640/mo for those who are blind. The work rules are different for people already on SSD or SSI benefits. SSA's policies are structured to assist people in going back to work. The rules for how employment affects eligibility balance the need for people to show that they cannot do work on a regular and on-going basis, against the incentives to allow and encourage disabled people to return to work. This is a complicated issue, for which information is available on line at SSA's website.
Q. If I am receiving SSD benefits, can I work?
A. Yes, but once again there are certain restrictions. SSA has two primary ways to encourage people receiving SSD to return to work. The first is called the trial work period, which allows people to work for nine months- not necessarily nine months in a row. The amount you earn in a trial work period is not limited. Then, after the trial work period, you have an extended period of eligibility of 36 months, when you are paid your monthly benefit during the months you earn less than the substantial gainful activity amount, but not paid during a month you earn over that amount. The second way to continue to receive benefits while working is to be in an approved ticket to work program, during which your SSD benefits are not reduced. This description is for SSD, SSI benefits are always reduced when you have income. For more information check SSA's website.
Q. Where do I find SSA's website?
A. SSA has two identifiers for its website: "www.ssa.gov" and "www.socialsecurity.gov.". The site is quite user friendly and answers many more questions.
State Worker's Disability Benefits
Q. What kind of benefits can I obtain from the Commonwealth?
A. Chapter 32 of the Massachusetts laws guarantees that you be able to apply for benefits you may have accrued with the state or a municipality you have worked for. If you were injured in the performance of a duty at work, and are unable to do the "essential functions" of your job in the foreseeable future, you may be eligible to receive “Accidental Disability Retirement" benefits, paid at 72% of your recent rate of pay. If you were not injured while doing a duty of employment, you still may qualify for ordinary disability retirement benefits. That is based on your pay and the number of years you worked for the state, municipality (or can be transferred to the state pursuant to agreements with other states/municipalities).
Q. Do my state worker's disability benefits also give me medical coverage?
A. No, Whether you have medical coverage generally depends on the contract you have from the union contract from your work.
Q. How do I apply for state worker's disability?
A. You can obtain an application from the Retirement Board which services your employer. For instance, if you work for a state institution, the State Retirement Board in One Ashburton Place in Boston would service your claim. If you are a teacher, the Teacher's Retirement Board in Cambridge would provide you information. Large cities, like Boston and Worcester, and counties have their own retirement boards.
Q. What if I am disabled but my disability did not occur during the performance of my duty?
A. You may still be eligible to receive Ordinary Disability Retirement, though that will generally be at a lower rate?
Q If I am on worker's compensation benefits, am I automatically entitled to Accidental disability retirement (ADR)?
A. You may be eligible for ADR, but worker's compensation coverage is somewhat broader in the incidents it covers than is ADR. You are not automatically entitled to ADR because you receive worker's compensation.
Q. Can I appeal if my application to benefits is in whole or in part denied?
A. Yes. You have a right to appeal to the Department of Administrative Law Appeals (DALA) in Boston. You only have fifteen days to appeal to DALA. The wait for a hearing is currently quite long. If you lose there, you can appeal to the Contributory Retirement Appeal Board (CRAB), the Superior Court and then to Massachusetts Appeals Court. Each of these appeals have short periods of time (30 days to CRAB and the Superior Court) to file the appeals.
Long Term Disability
Q. Who decides if I am disabled and eligible for long term disability?
A. Generally, your employer buys long term disability from an insurance carrier to cover its employees. In that case, the decision is made by the insurance carrier.
Q. How does it decide if I am eligible?
A. The terms of the coverage are set out in a "plan", which must be made available to the employees upon request. It is several pages and should not be confused with the 2 or 3 page summaries often given to employees. There are various plans, but there is a pattern amongst carriers of the types of provisions in the plans. In most cases, there is a waiting period before you can be paid benefits. The most common plans (though not all of them) provide that are considered eligible for a period of time, often 2 years, if you are unable to perform the duties of your job; after that 2 year period you have to show you are unable to perform all work for which you are suited.
Q. Is there any law that regulates the insurance companies or employers?
A. Yes. The federal government regulates the plans funding and how claims are to be processed through the Employee Retirement Income Security Act- a law commonly called "ERISA". It does not set eligibility conditions, but specifies time limits and methods for deciding LTD claims. It gives employees important rights to obtain their benefit plans, records and information obtained by the insurance company, and information used in deciding their claims. The state does relatively little in connection with the regulation of these plans, though there are some consumer protections which primarily apply to how policies are sold.
Q. Do I have the right to appeal if I am denied LTD benefits?
A. Yes. However, in most plans, the right is limited to people who file their appeals within 180 days after they are notified of their denial. When submitting an appeal, the insurance company must make its decision within 45 days (or state good reason for why it will take up to 90 days for its decision). The appeal is a review of the written evidence. Thus it is important to submit additional evidence which counters the company's reasons for denying you. This should be done along with the appeal itself. Otherwise the company will deny the appeal before it receives the additional evidence. There is no hearing. However, ERISA guarantees that you will receive a full and fair opportunity for review.
Q. Can I file an appeal of my LTD if I lose my appeal with the insurance company?
A. Yes, you can file an appeal of the insurance company’s decision in state or federal court. However, the Court can not allow you to try your case all over again. The record of the appeal must consist primarily, and in most cases entirely, of the medical and other records you presented to the insurance company.
Special Education (Massachusetts)
Q. What must I do to obtain special education for my child?
A. You need only to request that a team meeting be convened. You have a right to go to that meeting and make yourself heard. It is very important that a parent attend that meeting. It is a good idea to bring an advocate- someone who is knowledgeable about the process. You, as the parent will face a number of teachers and administrators at the meeting, who have a thorough knowledge of the process. If things do not go as you hope, you should be prepared to rely on someone who can help you protect your legal rights.
Q. What happens at a Team meeting?
A. The purpose of the Team meeting is for all of the relevant experts,
including your child's teachers and the parents, among others, to meet and
decide whether your child is eligible for services under the state and federal
special education laws, and if so, what services they should provide. They
should consider the medical and psychological reports of those who treat
him/her, and what needs are presented that should be addressed. They address
all of the concerns in a document known as the Individualized Educational
Q. How long will it take for the school to put together its proposed IEP?
It is best to quote from the state rule, 603 CMR 28.05(1):"Within 45
school working days after receipt of a parent's written consent to an initial
evaluation or reevaluation, the school district shall: provide an evaluation;
convene a Team meeting to review the evaluation data, determine whether the
student requires special education and, if required, develop an IEP in
accordance with state and federal laws; and provide the parents with two copies
of the proposed IEP and proposed placement..." If a placement meeting is
needed, than the school can exceed the 45 "school working day"
deadline. The evaluation process should be completed within 30 days after the
receipt of the parent's written consent. The timing of this process gets
complicated when the request is received within the last 45 days of school,
before summer break.
Q. What services does the school have to pay for when my child is eligible for special education?
A. The school needs to assure that your child receives a "free and appropriate education". What services must be provided vary by the circumstances, but the school needs to consider your child's various learning abilities, social skills, his/her ability to learn in various environments, and his/her ability to conform his/her behaviors to what is expected in school. The child must be able to make effective progress through the curriculum. So much as is possible, that progress is measured by the child's ability to learn material in the general curriculum for the child's grade.
Q. Can the school place my child in a class with all disabled children?
A. The legal requirements call for your child being placed in the least restrictive alternative which works for him/her. First consideration must be given to keeping the child in the mainstream classroom. But that might not work. The team must decide what plan is most likely to allow a child to make effective progress, while trying to keep the child as close to a mainstream setting as is possible.
Q. Does the fact that a child must be in the least restrictive alternative mean that he cannot get services outside the school that s/he needs to learn and keep up?
A. There are times when a child cannot make effective progress in one of the areas the school needs to consider, while s/he is in a public school setting. At those times, the school cannot insist that the child remain in place in the public school just because it is a less restrictive setting.
Q. If I do not agree with the school's evaluation do I have a right to my own assessment?
A. You always have a right to have your child tested at your own expense and the school is required to consider that. In addition, the school must pay for your child to be tested when you disagree with one of their assessments, unless they appeal your request and demonstrate to a hearing officer that their report was comprehensive and without error. One needs to be eligible to receive school payment for the independent evaluation, which can be full or partial. The school can therefore ask for proof of your financial position.
Q. How do I know what the school plans to do for my child?
A. There is a plan known as an Individualized Educational Plan (IEP) which is adopted by the team. The school must follow that plan in carrying out the child's educational program. Obviously, all teachers must be intimately familiar with the contents plan.
Q. What if I do not like the plan or believe that the plan is not being implemented?
A. You can appeal to the Bureau of Special Education Appeals which is in Malden. Your will be asked whether you want to mediate your claim after you file an appeal?
Q Do I need a lawyer or a highly skilled advocate to help me with my special education case at the Bureau of Special Education Appeals?
A. Yes. At a hearing, the evidence that must be shown to convince the hearing officer is specific. Though the proceedings are not a formal as a court, they are still intimidating and quite formal. The testimony of experts should be presented and should be to the point, as should testimony of those familiar with the child.
Q. What happens to a child during the time I am pursuing an appeal?
A. With a few exceptions, the child stays put in his/her last placement. The
rules are more complex for a child removed due to a disciplinary issue.