By Joseph Romano
Q: I am a quadriplegic, and I have private health insurance. My treating doctor indicates that I need a power wheelchair. My insurance company will only pay for a manual wheelchair. I need help. What can I do?
 Joseph Romano
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A: You need to take the following steps with your attorney/advocate:
1. Obtain the master health insurance policy from your insurer;
2. Examine the insurance policy carefully to determine how medical necessity and durable medical equipment are defined;
3. Provide a copy of the insurance policy and the definitions of medical necessity and durable medical equipment to your treating doctor;
4. Obtain a narrative report from your treating doctor that indicates the power wheelchair is medically necessary, meets the definition of durable medical equipment, and the specific reasons why this type of equipment is needed in your case;
5. Submit this report to your insurance company and request payment for the power wheelchair. If you receive a denial, file an appeal. Your health insurance company will provide you a list of your appellate rights.
6. Important: Follow all of the time limits set forth in your health insurance policy regarding appeals. It is helpful to request that your appeal hearing be in person, although many of the appeals are done over the telephone.
Q: I was in an accident in 1999 that resulted in a spinal cord injury. I am on Medicaid, and have been told that if I receive money from the person who caused my spinal cord injury, I will be disqualified from Medicaid and other governmental benefits. Would a "Special Needs Trust" help me in this situation?
A: A Special Needs Trust would be very helpful in this situation. A Special Needs Trust is the only financial management device that will allow a person, like yourself, who suffers a serious or catastrophic injury to receive money from the person who caused the spinal cord injury, yet still remain eligible for Medicaid, Medicare, and other public benefits. A Special Needs Trust should be prepared and approved by the Court before you receive any settlement proceeds. It should be carefully drafted to make sure that the document meets all the state Medicaid requirements, and that the proper investment device and trustee are selected.
Q: I have a spinal cord injury but I have been denied my Social Security Disability benefits. What do I have to prove in order to qualify for Social Security Disability benefits?
A: Social Security Disability insurance benefits will be paid to a disabled worker and his or her family if earnings are lost or reduced due to the worker's disability and if the worker has earned credits for a certain number of pay periods under Social Security standards. (The amount of work credit needed depends on the worker's age.) People are considered disabled if they have a physical or mental impairment which (1) prevents them working, and (2) is expected to last for at least 12 months or to result in death.
Even when there is a catastrophic injury, the Social Security administration usually rejects a person's application for benefits. This rejection is sometimes based on insufficient medical documentation to determine a person's injury or insufficient work credits. If you have suffered a catastrophic injury, you should appeal your denial of Social Security benefits. It is very important that you obtain all the relevant medical information so that it can be presented to the Social Security Administration at the time you appeal the denial of benefits and file your application for reconsideration. In addition to presenting additional medical evidence, you should ask that your application be given priority, and request an immediate hearing, since you have suffered a catastrophic injury.
The Social Security Administration will require that you attend an independent medical exam. There is nothing independent about this medical exam, since (1) Social Security picks the doctor, (2) Social Security pays the doctor for the examination, and (3) Social Security receives a copy of the report. You should always have your attorney or your representative attend the medical exam as your advocate. In addition, you should request, and follow up to receive, a copy of the report that the examining doctor will send to Social Security.
Q: I am the parent of a child who was involved in a diving accident in 1998, when she was 8 years old. She is now 11 years old. Is it too late for me to sue/bring a claim against the manufacturer of the swimming pool?
A: As with any legal claim, personal injury claims must be initiated within a certain period of time. The period varies, depending upon the facts of the case and the state in which the injury or accident occurs. If a claim is not commenced before the deadline, the court will refuse to hear it. In most states, if the injured person is an adult (over age 18) the lawsuit must be filed against any responsible parties within two or three years.
Many states have passed Minors' Tolling Statutes, which extend the limitation to give parents of an injured minor two years from the date the minor reaches 18 years of age to bring a claim. Minor's Tolling Statues allow the treating professionals, the attorney, the medical professionals, and the courts time to properly evaluate the medical and legal needs of the minor at the time the minor reaches majority. An attorney who is familiar with the laws in your state can advise you how long you have to file your lawsuit, and whether the state has a Minor's Tolling Statute that extends the filing deadline for your child's claim.
I would ask that you call me to discuss (1) what state the swimming pool accident occurred in, and (2) the date of the accident. I am also interested in whether or not the swimming pool is still available for inspection. Once I have this information, I will research the statute of limitations as it pertains to a minor in your state, and I will contact you.
Q: My treating doctor has recommended electrical stimulation treatments for my spinal cord injury. My private health insurance company will not pay for electrical stimulation because they say they do not pay for experimental treatment. Can I challenge this decision by filing an appeal? If so, what is the procedure?
A: You can challenge your health insurance company's denial to pay for electrical stimulation, and you should. Insurance companies often deny "state-of-the-art" treatments for individuals with spinal cord injuries--such as electrical stimulation--on the basis of "We will not pay for experimental treatments." It is critical that you take the following steps:
1. Obtain the master provider agreement, the insurance policy;
2. Carefully study the definition of experimental treatments, which will be contained in the policy;
3. Provide the policy and definition of experimental treatments to your treating doctor;
4. Research the internet and hospital medical library to accumulate evidence (medical studies and papers) to substantiate/prove that electrical stimulation works, that it is medically necessary in this case, and that it is not an experimental treatment;
5. Aggressively pursue an appeal, with an advocate, to be sure you follow all the timetables and guidelines of your health insurance policy's appeals section.
Joseph L. Romano, Esquire, is an attorney whose practice is limited to representation of people with catastrophic illness or injury. Mr. Romano represents adults and minors who have spinal cord injuries, traumatic brain injuries, and other serious injuries, throughout the United States, with qualified co-counsel.
The information contained in this column in answer to questions is intended to provide legal information, and not legal advice. It is not a substitute for personal contact with an attorney to discuss all the facts and circumstances of your particular questions. The law is different from jurisdiction to jurisdiction, and interpretation of similar laws can be different from court to court and state to state. No general information such as that provided here can fit every circumstance.
Please contact Mr. Romano, or another attorney of your choice, to discuss your questions and to review the facts about your case in greater detail.
Joseph L. Romano
Commonwealth Bank Plaza
2 West Lafayette Street
Suite 120
Norristown PA 19401
800/331-4134
A complimentary copy of Mr. Romano's new book, entitled Legal Rights of The Catastrophically Ill And Injured: A Family Guide, may be requested by contacting his office at 800/331-4134. Updates to this book can be found on his web site: www.josephromanolaw.com
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