I have received an e-mail from Charles E. Binder of Binder and Binder today. Here's part of it:
You have written that Binder & Binder "can no longer afford to update medical records" because of its bankruptcy filing. That is completely untrue and I have no idea what the basis for your statement could be. Although Binder & Binder is in bankruptcy, its primary concern remains to ensure that its clients are competently represented. That remains my personal goal as well.
I believe that obtaining existing medical records relating to a claimant's disability which have not already been obtained by Social Security is a crucial part of representing a Social Security disability claimant. Fronting the costs of obtaining those records is a traditional part of representing Social Security claimants. Even looking at it from a strictly selfish point of view, refusing to front the costs of obtaining existing medical records seems irrational to me. The costs of obtaining the records are modest. The risk of losing because the records aren't obtained is significant. The fees from one additional case won will pay for the expenses of obtaining records for dozens of claimants. Besides, in most cases it's possible to obtain reimbursement from the client after they've been paid by Social Security.
Binder & Binder's policy on medical records remains unchanged. There are multiple components. First, the most crucial evidence is not usually medical records, which are often illegible, vague and rarely address the client's disability, although Binder & Binder routinely seeks the doctors' office notes from treating sources. What Binder & Binder really wants is a narrative from a treating doctor summarizing the client's history, treatment, diagnosis, prognosis, etc. If that is not possible, Binder & Binder asks the treating doctor to fill out a questionnaire answering the questions that the SSA deems crucial when deciding disability claims. When the doctors' records are important and Binder & Binder can not get them or the client cannot afford to pay for them, Binder & Binder asks the SSA to issue subpoenas for the records. I note that our client retainer agreement has long provided that the client is responsible for payment for medical records. Nonetheless, Binder & Binder routinely pays the cost of obtaining narratives and answers to questionnaires (and medical records too) when clients cannot afford to pay the doctors' bills to get the information.
Georgia permits us to gather non-mental health records for free. OCGA § 31-33- 3. If gathering medical records are a major expense, then you should advocate for change in your legislature.
ReplyDeleteYou must have a different client base than I do. It is the rare day that the client will reimburse for the records costs. When I pay for records, I assume that I will never see the money back. I try to have the client get them first, then if the doctor refuses and/or wants immediate payment, I will pay the cost. With the reduced fees in these cases, it is not unusual to have the fee be less than the cost of representation.
ReplyDeleteWe front all costs, including office notes, hosp records, and narrative/RFC forms. We figure about half our favorable clients return those costs after several letters and calls from support staff. It's just a cost of doing business. However, we try to keep costs low and rarely spend more than $100-$200 on a file. And although we have a large-for-our-area practice (but certainly not on the level of the national firms), we're more careful in our case screening so we're not usually throwing good money at bad cases. It's made up in volume.
ReplyDeleteAs fun as it might be to bash Binder his points are excellent
ReplyDeleteMost medical records are garbage and quite useless to proving disability.
It also seems strange that SSA will only give the Docs ten bucks but I would have to give them 200 for the same records.The costs vary ALOT by state but clearly the whole idea of paying so much much for records is insane and should have been taken care of in the new health care law.
7:41 - Don't get me started on the medical records rip-off. At some point in the last 25 years, medical records became a profit center. What is the evidence for that? How many companies are doing it today? It must be very profitable. How much does it cost to copy medical records? It is even easier now that they are electronic.
ReplyDeleteIf they can produce records for SSA at $20 an order, they can do the same for everyone. In my opinion, any charge over $20 is too much.
@7:41
ReplyDeleteI'm not sure its as much that the medical records are all garbage, though some are better than others. Rather, a vast majority of doctors are not in the business of documenting disability. They are in the business of treating patients. Thus, treating source records are unlikely to go into much detail about some things an adjudicator must decide, like functional capacity. They diagnose medical conditions and they treat. They usually only comment on functional impact if prompted by a report request (some exceptions, like physiatrists and physical therapists). Too many adjudicators don't realize that, and it's a frequent cause for inappropriately discounting medical opinion evidence.
I worked at Binder and now work for a large firm that fronts the cost. Obviously, I like my current firm.
ReplyDeleteI agree rarely are the records over $100-200 per file. However, we rarely get reimbursed from the client (maybe 50 percent if we are lucky). We see it as a cost for doing business.
I never understood how the biggest SSD firm (Binder) could not front the costs. Maybe because they have the most clients. But fronting the costs is the best policy.
11:48 PM - Well put. When I go to my doctor, it's not a CE. He's not making a record with disability in mind.
ReplyDeleteJustin
I realize I'm very late to the party on this post, but I'm genuinely disgusted with Mr. Binder's unabashedly flippant view on the importance of updated medical records to a claimant's case. For starters, his statement that most medical records are illegibly handwritten or otherwise vague is simply inaccurate. In my experience, while some primary care physicians still take handwritten treatment notes, virtually all specialists and most PCPs now produce clear, detailed, computer-printed notes. Additionally, even if the majority of doctors' notes were as illegible and vague as Binder suggests, and Binder instead obtained the medical source statements he claims are the only important evidentiary submission, that would still in no way relieve them of the need for obtaining the doctors' notes. A source statement without corroborating treatment notes is almost useless, in that it provides the ALJ with no reliable evidence that could even establish the doctor as a treating source at all. Plus, from an advocacy standpoint, treatment notes will generally make any meritorious case that much stronger by demonstrating the claimant's consistent treatment as circumstantial evidence of their credibility in claiming disability. The fact that the largest practitioner of disability in the country (and even subsequent commenters on this post) suggest otherwise is simply baffling to me.
ReplyDeleteWhile my own practice is in its infancy, the firms I worked for previously struggled to update claimants' medical records in a similar fashion. In response, I drafted a fee agreement for my own clients that guarantees them that their records will be obtained in time for their hearing, or I will forfeit half of my attorney fee. There's no reason that this provision shouldn't be standard in the field.
Any more Binder & Binder updates? What's been going on with the bankdruptcy and the firm?
ReplyDeleteI'm also late to this, but I'm a former employee at Binder & Binder. What Charles says in his letter is at least partly a lie, in my personal experience as someone who was personally tasked with combing through thousands and thousands of medical records. We absolutely wanted medical records; the narratives and questionnaires from doctors were certainly the highest priority, but the records would go a long way to establishing the truth behind the doctor's opinion (and besides that, doctors very often didn't want to work with us to even that extent, so often medical records were all we really had). Some files had buckets - literally, entire buckets that needed to be wheeled to our desks - filled with thousands of pages of medical evidence. Of course we used them! Many of the advocates were, in fact, very particular about wanting detailed histories of hospitalizations and treatment (e.g. showing that the clients treated with X doctor for A, B, C illnesses, for whatever length of time) in order to demonstrate that the condition was truly ongoing. They were very important and that importance was certainly relayed to those of us who had to emphasize that importance to clients on the phone.
ReplyDeleteNow, what Charles says about having the clients pay for records themselves (when we didn't simply try to subpoena them, which generally we only did at the last minute) is true....which, not incidentally, tended to hurt the poorest clients hardest, as they usually couldn't afford to pay a couple hundred dollars for a narrative report or questionnaire. At least the records were (sometimes) obtained much more cheaply, but then those were often the cases where the records themselves were all we had, therefore hurting those cases significantly by Charles' own logic and tacit admission.
Can you tell I didn't have the greatest experience there? Although I fear for my former coworkers who (by and large) were good, smart, hardworking people who were routinely overworked and underpaid, I can't say I have even an ounce of pity for the management and ownership at the company. They're now reaping what they sowed.
No judge will approve a case based on a questionnaire without the actual medical records! B&B's Hearing representatives are often verbally reprimanded at Hearings. I know, I employ some former ones. ALJ's can't stand it! "Where are the records, counsel?" "Um, I'm just an employee. B&B won't pay for the records." Horrible! So many cases lost/lives ruined because B&B doesn't pay for the records up front. Our policy is to NEVER charge a client for medical records. Our agreement with our clients: "You get treatment, we pay the invoices and submit the records." The records are THE MOST important part of any disability case.
ReplyDeleteThis is the first time that I have ever heard such a thing. I am so glad that I stumbled on to this blog post. Has Binder and Binder updated their response to you yet? Was that their final word on the subject. I find it hard to believe this is their policy, but I am glad to find out here than the other way.
ReplyDeleteKaroline Peak @ Ruffi Law Offices, S.C.
This post scares me to death on a number of different levels. If they were in charge of my records and I knew they filed, I would want everything before they locked the doors one night and never returned. Just because they replied today does not mean tomorrow they could move on to other things and leave you and the records high and dry.
ReplyDeleteTerry Wagner @ Michael Jeffries Law
Bender and Bender is so bad how do they stay in business they have to be winning some cases
ReplyDelete