(Traumatic Brain Injury Practice)

Legal Issues for the Family

Kenneth I. Kolpan, JD (Editor)

TRAUMATIC BRAIN INJURY has a devastating impact on the families of injured children. During a family's adaptation to a child's head injury, there are several legal concerns the family should be aware of because they affect the family situation. Major concerns are determining who is going to pay for necessary rehabilitation programming and who is going to provide the required services. Two legal areas give some answers.

HEALTH INSURANCE LAW

The first area is health insurance law. When a minor suffers a closed head injury, most family health insurance policies will cover acute hospitalizations, including rehabilitation, until the child reaches age 26 . At age 26, the family member with the head injury must purchase his or her own health insurance policy (usually an individual policy), but the newly purchased policy will likely exclude from coverage preexisting conditions such as seizures. The preexisting condition exclusion may not be part of the policy.  This issue is subject to legislative enactment, which as of the writing of this article, is not conclusive on the pre existing exclusion.   

Even if the head-injured person can buy a health insurance policy, important coverage may be excluded. There is an exception if an injured family member becomes totally disabled as a result of a head injury prior to seeking coverage. Many health insurance companies will, after receiving written verification of total disability prior to the child's 26th birthday, provide lifetime insurance coverage to the injured family member. The amount of coverage is then limited to a lifetime maximum (e.g., $250,000). Families are well advised to notify their health insurance carrier before their child's 26th birthday to obtain this continued coverage.

FEDERAL LAW

Federal law gives some guidance in regard to who will provide the rehabilitation service for a young family member with a head injury. Children with head injuries may be eligible for special education services under the Education for All Handicapped Children's Act (Pub L No. 94-142). Services may include speech and physical therapies, reading programs, special tutoring, and accommodations during testing. The services give children with head injuries the same opportunity to benefit educationally as non-special education students. The special education program is available to a child with a head injury if he or she qualifies as in need of special education services after a comprehensive evaluation. The student with a head injury is then eligible for special education services through age 22 or until graduation from high school, whichever comes first.

Because special education may provide and pay for important educational services for a child with a head injury until age 22, a family should approach the head-injured child's high school graduation with caution. Once the head-injured child accepts a high school diploma, the child is no longer eligible for special education services under the act. As often happens, when the head injury occurs to a high school teenager, a school may want the student to graduate with his or her peers as a magnanimous gesture, but a family should know this gesture has its costs: Special education services will no longer be available. Some families have seen schools promote students with disability not based on their abilities but for some other reasons, be it social, charitable or avoidance of special education costs.  Families should advocate for all necessary services while the child with a disability is a student and remains eligible for special needs accommodations. Premature graduation may leave the student with unfulfilled needs, and a diploma.

Families should explore Social Security Disability Insurance (SSDI), Medicaid, Medicare and the Affordable Care Act (ACA) for possible coverages and benefits.

Family members often report signs that a person with a traumatic brain injury fail to. Strong advocacy is required.  Your state Brain Injury Association (e.g, www.biama.org and the Brain Injury Association of America, www.bia.org are important resources to ensure the a student receives needed services and benefits. Families should turn their state's protection and advocacy centers if the school is unwilling to meet the student's educational needs.