ABD Denial/Termination: Medical Reasons
Authored By: Northwest Justice Project
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The ABD program provides income and medical coverage if you are a citizen or eligible immigrant, you have income and resources within Department of Social and Health Services (DSHS) rules, and you are "disabled." "Disabled" means you are unable to work due to physical or mental conditions (or both) that either have lasted or are expected to last at least nine months. #7811EN
- Can I get ABD?
- What if DSHS denies/ends my ABD?
- When should I ask for an administrative hearing?
- How do I ask for a hearing?
- Who holds the hearing?
- What is explanation and review?
- Can I appeal the explanation and review?
- Should I reapply?
- I asked for a hearing. Now what?
- How do I prove I cannot work?
- What if DSHS will not pay for more tests?
- Can I get legal help
The ABD program provides income and medical coverage if all these are true: you
Are age 65 or over.
Are a citizen or eligible immigrant.
Have income and resources within Department of Social and Health Services (DSHS) rules.
Are blind or "disabled."
"Disabled" means you cannot work due to physical/mental conditions that have lasted or will last at least twelve months.
*If DSHS denies you ABD because you have too much income/resources, or for any other non-medical reason, see How to Fight a Denial of DSHS Public Assistance.
You may need help getting/keeping DSHS benefits because you have:
Problems reading or writing.
Problems speaking or understanding English.
Problems from drug/alcohol use.
You can do any/all of these:
Ask for an administrative hearing.
Ask a DSHS supervisor to review and explain the decision.
You have 90 days from the date of the denial/termination notice. Generally, DSHS has 45 days after you apply to decide if you should get ABD. If they do not send you a notice within 45 days, ask for an administrative hearing for a decision about whether you can get ABD.
If DSHS is ending your ABD, you can keep getting it until the hearing process is complete if you ask for a hearing within ten days OR before the date your benefits will end.
Write/call the Office of Administrative Hearings (OAH) at P.O. Box 42489, Olympia, WA 98504, phone: 1-800-583-8261.
Call/write your DSHS office.
If it is an emergency, call OAH to ask them to schedule an "expedited" hearing as soon as possible. Otherwise, your hearing will probably be 20 days or more after you ask for it.
An Administrative Law Judge (ALJ) who does not work for DSHS does. If you win, the ALJ will usually order the benefits paid effective the day DSHS denied them.
*If you are representing yourself, get Representing Yourself at an Administrative Hearing.
You can ask your DSHS worker to explain more about the decision before/after asking for a hearing. You may learn DSHS had wrong info or was missing info. If so, try to give the right info. Ask the worker for any help you need getting it. If it costs to get it, ask DSHS to pay or if they will accept other proof.
You may also ask the worker's supervisor for a meeting to review the decision. If you write the supervisor, s/he must write back within ten days. If that does not change the decision, write the head administrator of the local DSHS office. S/he also must write back in ten days.
There is no more appeal unless you also ask for an administrative hearing. The ten- and 90-day deadlines for continued benefits and appeal run while you work with DSHS.
*Even if it seems like DSHS will fix your case, ask for a hearing just in case. You can withdraw the hearing request if things work out.
You can reapply for benefits any time, even if you asked for a hearing. You should reapply if:
You think DSHS correctly denied you but your situation has since changed.
You have more info that might change their decision. Your worker/supervisor will only consider it if you reapply. You can reapply while also trying to use the new info in your hearing. The approval of a new application probably will not go back to the date you first applied or DSHS first denied you.
Contact the Administrative Hearing Coordinator (AHC) at the local DSHS office. S/he represents DSHS in the hearing. Many cases settle beforehand by pointing out that DSHS made a mistake or getting complete medical info.
Before the hearing, the AHC must give you a packet of all evidence DSHS will use at the hearing. You can better prepare for your hearing if you get started before getting this packet.
Make an appointment with the AHC to look at your file and discuss your case. Get copies of all medical reports and other documents DSHS used/created in making/explaining its decision.
If you are appealing a termination decision, ask to see all medical evidence in your DSHS file. There may be favorable medical info DSHS does not put in the packet.
The DSHS notice denying/ending ABD should give at least one Washington Administrative Code (WAC) rule supporting their decision. Ask the AHC for any other rules they relied on. The ABD rules are in WAC Chapter 388-449.
Ask the AHC
To explain anything you do not understand about DSHS's decision.
What evidence would change the decision. If you get them that evidence, DSHS may give you ABD without a hearing.
Why the medical info does not prove you cannot work. What it would need to say to prove it.
If you cannot reach the AHC, or find him/her unreasonable, talk to the supervisor or administrator. If DSHS still does not agree, go to the hearing.
After you apply for ABD, DSHS reviews your medical/vocational info. It is usually on DSHS evaluation forms from doctors who examined you.
DSHS uses a five-step "Sequential Evaluation Process" (SEP) form following WAC rules. You must figure out what parts of the evaluations, and what step of the SEP, show why DSHS is denying/ending your benefits. Read more about the SEP in the Social Service Manual.
If you think any doctors who did an evaluation for DSHS may support you on any point DSHS told you is important to the decision, ask the doctor for a letter of support. You might be able to get the proof DSHS needs from your regular treating doctor, psychologist, nurse practitioner, or mental health worker. If you are a client of the Department of Vocational Rehabilitation (DVR), ask for copies of medical/vocational info in your DVR file that may help.
If you believe more medical evaluations would prove your case, ask DSHS to pay for an evaluation. You must give good reason for needing the evaluation. Examples:
DSHS did not get evaluations of all your medical problems they know about.
You have a past medical problem you believe still keeps you from working. No one has evaluated it.
An evaluation mentions medical problems outside that doctor's expertise, or recommends evaluations DSHS did not get.
There are other reasons the doctors did not completely evaluate your medical condition or fill out the form. Examples: They did not put how long they expect you to be unable to work, or left out medical conditions.
DSHS says there is no objective medical evidence supporting what a doctor said about your condition or how it limits your ability to work. Ask them to follow up with the doctor or say what testing you need. If you need more tests, ask DSHS to pay for them.
Call the OAH. Your Notice of Hearing lists the number. Ask for a pre-hearing conference where you can ask the ALJ to order DSHS to pay for a second evaluation.
If the ALJ will not do this, try to get one from another doctor yourself. Try a doctor you have seen before. Ask your doctor to use DSHS's evaluation form. Ask DSHS for blank forms to bring to your doctors, or print them yourself. Form 13-021 is for physical conditions. Form 13-0865 is for mental health conditions. You can also ask the ALJ at the hearing to order DSHS to pay for more evaluations. Any further evaluations you get may help you settle or win the hearing.
If you cannot settle beforehand, you should testify at the hearing about how your medical problems limit what you can do. The WAC rules, DSHS evaluation forms, SEP forms, and hearing packet will help you focus.
If the AHC left info out of the packet you think helps you, make a copy for the ALJ before the hearing. If you give the AHC a copy before the hearing, the AHC should get it to the ALJ for you.
At the hearing, give examples from your daily life, especially situations where you worked or tried to. You can have people who know you well testify to what you are able and unable to do.
Call CLEAR, a toll-free intake, advice, and referral service run by the Northwest Justice Project: 1-888-201-1014 between 9:15 a.m. and 12:15 p.m. Monday through Friday.
This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of June 2018.
© 2018 Northwest Justice Project — 1-888-201-1014.
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)