Administrative litigation practices are surging thanks to an aging population, significant changes to government benefits, and a prodigious increase in the number of people applying for benefits. The need for attorneys proficient in this area is acute. In addition, recent developments involving assistance programs have led to a surge of interest in disability and elder planning. The three administrative hearing forums with the largest increases in benefit applications and corresponding hearing backlogs are the Social Security Administration, the Office of Medicare Hearings and Appeals, and the Board of Veterans Appeals:
Social Security Disability Income (SSDI)
The Social Security Disability Income (SSDI) program is supposed to provide a safety net for people unable to work due to injury or illness. According to the Social Security Administration (SSA), almost 1 million people remain stuck in a hearing-decision backlog that averages 599 days (20 months). In some places, wait times are up to 772 days. In 2017, more than 10,000 people died waiting to hear if they would be awarded SSDI benefits.
The backlog has been at crisis levels for years, growing in number despite numerous efforts to bring it down. It has not helped that SSA has been without a Senate-confirmed administrator since 2013. Moreover, SSA lacks sufficient staff notwithstanding that it hired 600 Administrative Law Judges (ALJs) as well as legal support staff in the past three years.
Some of this may be alleviated by a provision in the massive spending bill recently passed by Congress. The bill provides $100 million for SSA to fix the backlog problem. Whether this will be enough is open to question. SSA predicts a dramatic rise in disability applications in 2018 and 2019.
In short, SSDI is a mess and anytime there is a mess in a major benefits program, that spells opportunity for attorneys.
Hearings are held in 160 venues nationwide as well as by teleconference and Skype.
Note: In addition to the many private sector legal jobs this inundation will create, look for SSA to up its hiring of ALJs and attorneys.
As of June 2017, the Office of Medicare, Hearing and Appeals (OMHA) had 607,402 appeals pending with a current estimated wait time of three years to process a healthcare provider’s appeal. At this rate, the backlog is predicted to reach 950,000 appeals by the end of Fiscal Year 2021.
Like SSA, OMHA is under severe strain despite hiring a substantial number of ALJs and legal support staff in recent years. The system has been overwhelmed by a massive increase in the Medicare population resulting not only in an explosion of individual appeals, but also a surge in institutional appeals from hospitals and other healthcare providers regarding reimbursements. The appeals process for unfairly denied claims can take as long as 4.5 years to conclude, according to a 2017 study by the Journal of Hospital Medicine. Delayed payments put a severe financial strain on the healthcare provider community.
What does this mean for legal practitioners? There is a shortage of attorneys needed to represent both individuals and healthcare providers. The incentives, particularly with respect to providers, are enticing: the U.S. Department of Health and Human Services (HHS) Office of Inspector General (HHS is the parent organization of OMHA) has found hospitals are successful in 72% of inpatient claims denial appeals. Some hospitals have experienced success rates over 95 percent.
Another incentive is a new settlement program announced recently by the Centers for Medicare and Medicaid Services (CMS), an HHS subsidiary agency. This is designed to cut into the hearings backlog and allow for negotiated settlements of certain claims.
Veterans Disability Appeals
More than 50 percent of the more than 2 million Iran and Afghanistan war veterans are applying to the Department of Veterans Affairs (VA) for disability benefits. The VA’s Board of Veterans Appeals (BVA) is being overwhelmed by applications on appeal. Its 91 Veterans Law Judges and 671 attorneys cannot handle the volume of work. BVA currently confronts a hearing backlog of around 500,000 cases.
The current BVA appeals process is complex and very different from other federal and judicial appeals processes. It is uniquely distinguished by a continuous open record that allows a veteran, survivor, or other appellant to submit new evidence and/or make new arguments at any point during the appeals process. Additionally, the duty to assist throughout the appeals process requires VA to develop further evidence on the veteran’s behalf and pursue new arguments and theories of entitlement. Each time new arguments or evidence are presented, VA generally must issue another decision considering that evidence, which extends the timeline for appellate resolution.
This unusual process opens the door to attorneys to jump into the appeal at any stage. Moreover, while the vast majority of appeals involve disability compensation claims, BVA also reviews appeals involving other types of veterans benefits, including insurance benefits, educational benefits, home loan guaranties, vocational rehabilitation, dependency and indemnity compensation, health care delivery, burial benefits, pension benefits, and fiduciary matters.
Veterans represented by attorneys prevail in over 90 percent of BVA appeals, a much higher rate than those who represent themselves or are represented by non-lawyers.
Another inducement to attorneys seeking an interesting and potentially lucrative practice is that we are now in a transition period from the existing appeals process to an entirely new one that will radically restructure the process and will be fully implemented by February 2019. The new appeals process is mandated by the Veterans Appeals Improvement and Modernization Act of 2017, and is intended to reduce appeal resolution time from its current, unacceptable duration of 3-7 years.
This means that attorneys new to the appeals process will be far less disadvantaged by having to compete with experienced lawyers. Everyone will be confronted with a new learning curve.
It is no longer necessary to travel to BVA headquarters in Washington, DC for a hearing. The vast majority of hearings are conducted by traveling Veterans Law Judges in local VA offices or by video teleconference.
National Board of Trial Advocacy
- Social Security Disability Certificate (online)
- Social Security Disability Bootcamp (Onsite Seminars or Audio & Materials)
- Social Security Disability Cases from Start to Finish (Video Webcast)
- Social Security Disability: Hearing Tactics and Advanced Challenges (Teleconference)
- Social Security Disability: Complex Cases (Video Webcast)
- Handling a Social Security Disability Case (Onsite Seminars or Audio & Materials)
- How to Cross-Examine Vocational Experts (Teleconference or Audio & Materials)
- Social Security Disability Claims (Video Webcasts or Video and Materials)
- Social Security Disability: Understanding the Activities of Daily Living (ADL) and Proving Cognitive Limitations (Teleconference or Audio & Materials)
- Medicare Planning and Appeals: What You Need to Know NOW (Video DVD and Coursebook)
- Obtaining Veterans Benefits (Audio Download and Coursebook)
National Board of Social Security Disability Advocacy
- Social Security Disability Specialist
Department of Veterans Affairs
- Accredited Veterans Benefits Representative
- The Medicare Appeals Process
Centers for Medicare and Medicaid Services Online Training Programs
- Part C Appeals: Organization Determinations, Appeals & Grievances
- Part D Coverage Determinations, Appeals & Grievances
National Veterans Legal Services Program
- Basic Training Course for Veterans Benefits