Social Security is publishing final rules on Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process in the Federal Register tomorrow. These will be effective on January 15 but "compliance is not required until May 1, 2017" which is an odd way of doing things. These rules state that, with some exceptions, all evidence must be submitted at least five days before an ALJ hearing.
The evidence rule is kind of like big boy court. Why waste the time, effort, and money to have a hearing if one doesn't have the evidence in front of the Judge? It's not like these cases move so quickly that a rep can't keep up with what is going on. I think more claimant's should file malpractice claims on their reps for such bad representation.
ReplyDeleteI am over this "big boy court" argument. Once again, please tell me how a disability claim is at all similar to a PI case. Apart from piles of medical evidence, they aren't. Usually by the time a PI case gets to trial, years have elapsed since the event. Disability involves an ongoing condition that changes, and the need to keep up with a person's changing conditions is simply not the same as the compilation of medical evidence from a singular event. I agree there is no excuse to not have evidence going back to the AOD but if a person went to the doctor two months ago and that evidence is relevant it is absurd to say that can't be in the file because we can't get it more than 5 days before a hearing.
Delete9:24 AM,
ReplyDeleteAmen!
I was in a hearing on Monday (12/13) where a judge berated me because I didn't have records of an 11/30 ER visit!
@9:12
ReplyDeleteThe general concern is post-hearing evidence documenting post-hearing treatment, but prior to the ALJ's decision. An ALJ's decision writing time can vary with some taking as little as 2 months but some taking up to (and rarely over) a year.
The adjudication of disability is as of the decision date, not the hearing. Therefore, evidence available post-hearing, but pre-decision, is relevant. Additionally, representatives are legally responsible for submitting all available evidence under threat of disqualification as a representative. Also, limiting submission of evidence at any point in the adjudicative process is a denial of due process under the 5th amendment. As such, it is neither in claimant's nor claimants' representatives interest to restrict submission of evidence.
Finally, in regard to your suggestion that a case might not move so quickly that a rep can't keep up. That depends on a claimant's medical providers and the local judge's office. Generally, we receive 2-3 months notice prior to a hearing, however the legal requirement is only 20 days and some judges' offices. Most medical providers are able to provide our office with medical records within 20 days, however some take up to 3 months. Limiting the submission of evidence to 5 days prior to the hearing in a worst-case scenario would only provide 15 days to actually obtain and submit medical evidence when a medical provider might not even provide our office with the records until 2 and a half months after the hearing. I'm not suggesting representatives should wait until a hearing is scheduled to actually seek medical evidence, but it does seem obvious that the scheduling of a hearing requires confirmation that all medical evidence has been obtained and submitted.
I believe the proposed regs also extend the required hearing notice time. In Region 1, where these rules are already in place, noticenof hearing has to be at least 75 days prior to the scheduled hearing date.
DeleteIt has become more difficult to get evidence from many providers. They nitpick about the release form and then take another month to send you a bill before they send the records.
ReplyDelete@9:53,
ReplyDeleteAnother big issue is that many of the big hospital systems use 3rd party providers (e.g. Healthport) to submit records. Thus, even if you ask the source to allow you to pick the records up, they say you cannot, as we have submitted them to a 3rd party provider. That 3rd party provider usually sits on the records another 30 days or so.
We'll adjust by just setting files ahead further before the hearings and ordering the updated medical records. The ALJs will have to now understand, though, why we don't have the last 30-45 days of treatment notes because we don't want to risk not being able to submit the records at all by waiting too long. Or, as a previous poster mentioned, why a recent ER or hospital visit is not included.
ReplyDeleteThe difference to the "big boy" court comment above is that for an SSD claim, we not only have to prove disability back to a certain date, but we also have to prove disability up to and into the foreseeable future of the hearing date. We're working with a constantly moving target, not just one date back in time, like a personal injury matter.
The comments above are all true. These third party providers take their time sending pages of information for which you must pay but don't necessarily need. When I get records from the provider, I can explain that I just need the admission and discharge or that I don't need ten visits irrelevant to the person's disability. I just paid $148.00 Healthport for a pound of records about a claimant's ER visits regarding a tooth ache. I don't like it but we just have to do what we have to do.
ReplyDelete@1:09
ReplyDeleteWe ask claimants' friends and family members obtain medical records if they are able as doctors' offices will often reduce their charges if they don't see Esq. after the letterhead. It is a bit of a hassle, however it serves the dual purpose of confirming continuing treatment and obtaining medical records.
It will be interesting to see how this all plays out. I am sure it will vary from ALJ to ALJ regarding how to deal with records near in time to the hearing but not yet in the record. If HIPAA gives a provider 30 days to respond to a request, it would appear that an ALJ would have a hard time justifying not allowing post hearing submission of records for treatment within 30 days of the hearing. Likewise, HALLEX indicates that ODAR is to allow 30 days for the submission of evidence after a claimant advises them of it and to extend the time if the provider indicates that they will provide the records in a reasonable time.
ReplyDeleteI have not read the Agency response to the various comments yet. Should make for an interesting one.
This comment has been removed by the author.
ReplyDeleteForgot what year it was for a second, haha. So these refs take effect in May.
DeleteWhen you read the final reg, it doesn't seem particularly burdensome to comply considering the "inform" option. I'm especially glad that they carved out an express exception for rebuttal evidence.
After reviewing the new rules I see two notes in explanatory materials:
ReplyDelete"In addition, we note that if a claimant informs an ALJ about evidence 5 or more days before the hearing, there would be no need for the ALJ to find that an exception applies, because the claimant notified us prior to the deadline." (page 16)
Also: "However, our final rule contemplates that some circumstances may warrant the introduction of new evidence at or after the hearing, and includes an “inform” option...." (Page 17)
Does this mean that as long as we notify ALJ of evidence by 5 days before hearing, we can submit after the 5 day deadline?
Also, the following note: "While it is true that, in many cases, an ALJ adjudicates the case through the date of the hearing decision, our rule is not intended to prevent a claimant from submitting evidence related to ongoing treatment. Rather, we expect that evidence of ongoing treatment, which was unavailable at least 5 business days before the hearing, would qualify under the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3)." (Page 15)
Does this mean we can update the record after the hearing with new evidence and also submit new evidence to the appeals council, as long as evidence is dated after the 5 day deadline?
Re: comment on the blog for the delayed enforcement, that is to ensure that the hearing offices have time to get up to speed issuing the notice of hearing 75 days in advance. And to avoid prejudice to those cases already scheduled after January 17. Right now many judges already have their dockets scheduled through the beginning of March.
ReplyDeleteOne thing to remember -- It's not 5 days, it's 5 work days -- and especially good thing to remember in November -- january!
ReplyDeleteAre there times when appropriate records cannot be obtained timely? Of course, many people have rapidly deteriorating conditions, some just have to fight the medical community to finally be taken seriously.
ReplyDeleteBUT everyone knows or should know there are reps who have no problem at all having everything filed a week or more before hearing in the vast majority of cases and there are reps who walk in day after day needing two more weeks or 30 more days to get all the relevant evidence in.
That's not an issue of trouble with providers, that is an issue of not having a good process in the office to submit requests in a timely manner.
The failure of a subset of reps to be diligent has resulted in a big national fix.
psst, reps:
ReplyDeleteThere's a newish federal statute that not only requires providers charge a tiny fee for records (the actual cost of procurement), but makes them do so within a really short timeframe. There are serious monetary penalties that HHS does pursue for noncompliance.
Get up to speed on that law--I won't tell you its name :)