From Social Security Ruling 17-4p to be published in the Federal Register tomorrow:
... We expect individuals to exercise their reasonable good faith judgment about what evidence “relates” to their disability claims. Evidence that may relate to whether or not a claimant is blind or disabled includes objective medical evidence, medical opinion evidence, other medical evidence, and evidence from nonmedical sources. ...
[W]e expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. ...
We will evaluate each circumstance on a case-by-case basis to determine whether to refer a possible violation of our rules to our Office of the General Counsel (OGC) . For example, in accordance with the regulatory interpretation discussed above, we may refer a possible violation of rules to OGC when:
a representative informs us about written evidence but refuses, without good cause, to make good faith efforts to obtain and timely submit the evidence;
a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us;
the representative waits until 5 days before a hearing to provide or inform us of evidence when the evidence was known to the representative or available to provide to us at an earlier date;
the clients of a particular representative have a pattern of informing us about written evidence instead of making good-faith efforts to obtain and timely submit the evidence; or
any other occasion when a representative’s actions with regard to the submission of evidence may violate our rules for representative. ...
I do not know if there is any practical way to notify the Social Security Administration immediately of the existence of new medical evidence. Am I supposed to send Social Security a notice about each visit my client has with a physician? Am I required to separately obtain a report on each physician visit? This appears to impose a duty upon an attorney to obtain every piece of medical evidence concerning a client -- including the hundreds, if not thousands, of pages of records generated by each hospitalization. The Ruling says we can't just inform Social Security of the existence of evidence. We have to obtain it and there is no limit upon this duty. How reasonable is this?
I know there's some people that Social Security wants to put out of business. They probably deserve to be put out of business but this is over the top. No one will be able to strictly comply with this. No one.
86 comments:
Now that a rep can't submit evidence post-hearing, it's really important that the medical records submitted be as up to date as possible. Meaning that as a rep, I want to request them close enough to the hearing date so as not to miss something, especially because the most recent treatment is going to be the treatment the client wants to testify to. I've had ALJs be mad that something is not documented in the submitted medical evidence, when it's the case that I wasn't able to get the material timely enough. Now there's this, where we'll be prevented from submitting anything if they deem us to be not prompt enough.
Charles,
I think the "despite good faith efforts" language gives you more cover than you realize. The excerpt you quoted also appears to be aimed at putting reps on notice that they should not take advantage of the "inform" rule shortly before a scheduled hearing. I don't see anything suggesting that reps will be required to immediately obtain and submit a report from every doctor's visit.
I've been seeing a lot of rep letters in the record dated about a week before the hearing that say something like consistent with the 5 day rule I'm informing you that this evidence exists out there, the claimant and I cannot afford to obtain the records, please obtain. thank you byebye. I think they want to curb that.
I had a case in early December of last year where the record was complete except for one primary care dr visit in late November. When I notified the ALJ of that visit, she gave me a lecture of a duty to inform/submit evidence. I literally almost laughed in her face. I said that more than likely, the facility hasn't even created a record of the visit yet. Different judges have a hugely different perspective on what "reasonable effort" is.
Stories aside, I don't think the rule is that bad. It is basically an elaboration on the rep's duty to act with promptness and reasonable diligence. It is basically saying, "no, it is not ok to merely tell us about the existence of 5 different sources 6 business days prior to hearing." I also noted that the language specifically says that if the rep isn't aware of the evidence, that is a defense. Our office keeps meticulous contact notes with claimants so that when they come out with new info right before the hearing, we can tell them (or the ALJ) that no, we were not informed.
My concern is not with their elaboration on the 5-day rule (it's not enough to simply "inform") but rather with the requirement that reps submit everything as soon as possible. With several cases scheduled for hearing at a time, it is NOT possible sometimes to submit everything as soon as it comes in. Our office handles applications, hearings, AC and federal appeals. If there's not an imminent hearing, other things get precedent. Things like federal motion deadlines, AC deadlines, and applications that need to be filed.
What results is that I am sometimes not aware of what has or has not come in yet, until 5 days before when I'm working up the file. Does this now mean that I am supposed to be checking every day to see if evidence has come in for any of my cases pending hearing? There is simply not time for that.
I get that SSA is trying to weed out the "bad" reps, but depending on a particular judge's application of the rules, the result may be weeding out the good reps, too, sadly.
What does unit WACCDR mean?
What does unit WACCDR mean?
I would really like to know what the whole point of evidence is, if the ALJ is just going to ignore it, dismiss it or claim it is not credible (based upon some "doctor's" "reading" of the notes, whom I never saw) Sorry, I am just so depressed. I can't take it any more
I think this points to a real issue. It isn't SSA or the Rep, but often the problem is with the provider. Rep requests the record, letter back from provider, this goes on haggling over price and eats a lot of time. Charging for a record has become a fee generator for medical offices, if they even respond at all. Since ALJs have no real power to do anything about it, they have to act like it is all the Reps fault. The reps, resenting the process, blame ODAR for not responding and requesting when good faith attempts to get a record fail. In the end, no record, hearing delayed or continued and bad feelings on all sides. Sure there are bad reps and bad ODAR employees, but most of this is just regular folks trying to get through a day of work and being held up by things outside of their control.
I think you would have a duty under the SSR to submit a daily summary of all client reports of treatment they received. Thats the only way you could inform of the treatment as soon as you became aware of it.
I think this SSR can be challenged as an improper revision of the regulations that was not conducted by appropriate notice and comment rulemaking.
The thing that gets me is the case is going to set in UNWR after the hearing for a very, very long time because of the unprecedented backlog. By the time a decision writer gets the case to write, there may very well be new medical records submitted, which the ALJ has not seen. What happens in this scenario? Does the ALJ review the new medical evidence to determine whether it changes their decision, decide to hold a Supplemental Hearing, or does the decision writer decide on reviewing the medical evidence it would not change the ALJ’s decision, and go ahead and write the decision? It just seems to me this Ruling is a bit one sided given the tremendous backlog. Shouldn’t SSA bear some responsibility, as well?
Sounds to me like SSA is unhappy about the way reps are complying with the 5-day rule. It would seem to me that if a rep is informing SSA but doing nothing else that is a problem, but I don't see how that is different than a rep who didn't request evidence before the 5-day rule.
Anonymous 9:37 -- The ruling describes a possible violation warranting referral to OGC when: "a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us." This certainly insinuates that we now have a responsibility to order every item of new evidence as we become aware of it, even for those clients who call every week with medical updates, because if we simply "inform" ODAR about the updates we haven't acted with reasonable promptness to timely submit the evidence. All of this is ridiculous given the fact that ODAR doesn't even work up a file until they've had it for a year or longer, and many judges admit that they don't review the hearing file until days before the hearing. This isn't about efficiency, it's about putting us out of business.
Just more blather in the torrent of attempts to make representing claimants as difficult as possible. Virtually every SSR involving reps in the last few years is written in what appears to be demeaning and critical manner. I do not know who is running the policy shop in SSA DIB, but perhaps they should focus on the overall problems with the hearings process. Right now, I have several claimants who are awaiting a decision from ALJs who have had all the evidence and conducted a hearing 6 months ago. Those are outlier ALJS. Most make timely decisions. However, these SSRs look like they are focusing on outlier reps, if you will. SSA should look at their folks and help improve the hearings process. Tweaking the edges with threatening SSRs will not accomplish anything. There has been nothing but Hubris coming out of SSA Disability Program.
Is Nadr or Nosccr doing anything about this new reg?
Is this all a precursor to closing the record at some point in time?
I think the 5 day rule essentially gives the alj the authority to close the record.
They are requiring a lot of work and man power for a 6K fee. When is THAT going to change?
@3:54
I think 42 USC § 405(c) already gave the ALJ the authority (actually directed the record be closed) at the time of the hearing. Post-hearing submission of evidence was always discretionary, and the 5-day buffer is a violation of the Social Security Act.
We file a request for hearing. It is likely two years before it will be scheduled. During that time, I repeatedly tell my clients that if anything changes, new doctor, hospitalization, return to work, to let me know right away. Some do, most don't.
If I am advised, I immediately write for update information. When I get it, I submit it. I know no one will actually look at it, but I submit it anyway.
Now, about three months out from a hearing date, if I am lucky, the Hearing Office clerk calls to set up hearing date. We then schedule client to come in to review file. I then get more info as to updated treatment and sent out requests for all updates and required info. We then set up followups for 20-30 days before hearing. Whenever the info comes in, we send it in. If we still don't have it a week before the hearing, we now send a letter. (We used to just tell the Judge at the hearing and most would say send it within a week or two and if still problem, let them know-Those days are gone)
My question is when does the Judge look at the file. Is it weeks before the hearing? I doubt it. Is it the day before the hearing, Maybe? Not even sure how often that happens. Is it sitting at the hearing. Often the case.
And once the hearing is held, how long until a decision is issued. The 70,000 case writing backlog means at least one and more likely two to three months before the hearing decision is issued. So, tell me exactly when and why does the lag in getting in evidence matters.
The reality is 90% of cases turn on credibility, and that is only decided at the hearing, whatever the medical evidence says. Delays in evidence are just an excuse for an Agency that has ceased to do its job.
Gotta blame somebody, why not the reps.
nope - Credibility is now a no-no. Had a hearing today on a cessation for a 9 year old who was paid at birth for a heart problem that resolved within a year. Father testified he had taken the child to the ER "many times," but there was not one ER record since 2009 nor treatment record since 2016 in the file. Father said he could try and find them . . . I said nope, too late, you have already had one postponement. His attorney rep just sat there.
I am tired of hearing "Well judge, we wanted to wait to get the latest records . . . " You had 75 days - some records are better than none.
This is what happens when non-attorneys write regulations and then attorneys read the regulation. Guess what, non-attorneys writing rulings don't fair much better.
@7:11
Are you allowed to advise the claimant about the potential legal malpractice claim in those situations?
Another problem is the fact that many reps are contractors for larger firms. As a contractor, a representative has no authority or ability to get the records for a case in which he/she is making an appearance. When the 5 day rule first came out, I had a judge yell at me because the records were not in the file yet when my 1696 was signed half an hour before the hearing. The ALJ then had the audacity to threaten me for raising my voice at the hearing. I didn't even realize my voice was raised. The point being, there are some really eccentric ALJ's out there and this will likely lead to a hearing process that is adversarial. Or worse, representative will be afraid to say anything at all. I'm sure that's the way SSA wants it, but I think the due process clause of the US Constitution provides more protection than that. This SSR is unworkable and astounding coming from an Agency whose own workplace practices would not stand up to the high standard they just put forth.
@1:57 stated, “I do not know who is running the policy shop in DDS DIB, but perhaps they should focus on the overall problems with the hearings process.”
This is SPOT-ON! This Ruling concerning time and the submission of medical evidence by SSDI Reps is rather punitive and a bit over the top. Moreover, the underhanded manner in which it was published without a public comment period is also suspect.
The bigger picture, however, is the tone of this Ruling is consistent with the manner in which SSA/ODAR is Managed, e.g., brow beating of ALJ’s over number of Hearings they must schedule each month in order to telework, production numbers and quotas for ALJ’s, decision writers, and other support staff, issuance of Reprimands and Suspensions to ALJ’s who fail these unrealistic benchmarks, etc.
This group of Managers who came aboard about 20 years ago, and progressively dominated Management by selecting favorites into Management over the years to the point where they dominate and control Management and operations of the disability hearings process is the problem. They alone are responsible for the tremendous backlog. I watched and worked with these Managers for years. The initial ones who came aboard were disastrous and frequently engaged in Unfair Labor Practices. Everyone turned a deaf ear to the misconduct they engaged. Now that they have had the opportunity to select like minded favorites into high level Management positions, they have single handedly run SSA/ODAR into the ground.
Gruber recently said “Management” is the problem, and she is correct. What is it going to take for people to come to their senses and realize this dominant group which now permeates every level of Management must go? Had Senior Management not turned a deaf ear to their misconduct more than 20 years ago, perhaps we would not be in this mess. How much further into the ground will they be allowed to run this Agency? Once and for all, this dominant group of Management must go if there is ever going to be positive change. Many of you know exactly who these individuals are. After more than 20 years of the inept charades they have put us through, stop turning a deaf ear, speak up, and be heard.
SSA just does not get it. At a time when backlogs are critical, they are creating rules that complicate hearings with extra issues that ALJs don't have time to fairly develop, that make it more likely that relevant evidence of disability gets excluded.
What happens when relevant evidence of disability gets excluded? People who legitimately meet the disability definition will more often lose due to the relevant evidence not being considered.
What do those legitimately disabled people do? They appeal or file new disability claims. Which does what? Makes the backlog even worse than if SSA took a bit more time to get the decision right in the first place.
SSA is not helping the backlog with these rules. They are likely making it worse, while causing more people to suffer. It sounds like they listened too much to a few whining ALJs without considering what was best for the public they are supposed to be serving when they passed these ill-advised rules.
The problem is that the medical providers do not automatically provide the records when you request them on the disability claims. They are the ones who need to be regulated. DDS sends requests repeatedly with no response and issues denials. Then the attorney requests are ignored and it takes multiple phone calls and letters to finally pull the records out of the medical providers. The payment for medical records issue also needs to be addressed. Some states have statutes with no payment required. Other states allow providers to charge hundreds of dollars for records that can easily be sent electronically and cost no paper or ink. The focus should be on helping reps do their job, and helping clients obtain records.
If SSA actually cared about timely getting all the records before hearings they need only do 2 simple things. 1, Put actual teeth into the subpoena enforcement process, and 2. Encourage reps to use them. Lacking such teeth plenty medical sources will continue failing to timely provide records. Trying to shift blame to claimants and reps for problems caused by SSA's own broken system is a cop out that hurts the public.
@Anonymous 9:21PM You really don't have much to stand on with your complaints. You were officially retained 30 minutes before the hearing and then you get defensive about the file not being developed. You may wish to think long and hard about the firms you do business with if they are handing off undeveloped files to you. I am sure your malpractice carrier will probably take the same position as the ALJ; you put your name on the 1696, you are responsible for the file.
Curious @4:52 -- not criticizing your way of doing things, just wondering. Do you find that you are submitting multiple requests to the same provider over and over when you order things as the client tells you about them? Does it drive up your costs? It seems this is the way SSA wants us to practice, but doing so would mean multiple records requests and costs from the same provider, I would imagine. We have some clients who are in and out of the hospital every other week. It's typically the same hospital that they go to. Our practice has been to order all of the records at once, when the hearing is scheduled, so as not to have to duplicate our efforts (and costs).
I'm curious how many people practice this way. Kudos to any office that can and does order all records as they're informed of them throughout the process, but I'm afraid we don't have the time, staff or money to be able to do things that way.
I have a simple solution, but it would require changes to the rules, and maybe even the act itself.
Limit ALJ review to the administrative record that was submitted below, but also make the ALJ's decision only binding up to the date the admin record was closed. ODAR would not have to deal with new evidence at all. The ALJ would simply be reviewing the evidence that was submitted with the initial application and reconsideration.
If the claimant has additional medical treatment, he/she can make a new claim with the new evidence at a later date.
@11:25 that is a horrible idea on multiple levels.
I do like the idea of forcing the DDS level to more properly complete the record. what is good for the goose is good for the gander. It would end up with a higher percentage of approvals at the initial level, reduce the backlog at the hearing level (fewer appeals as more approvals commence at the initial level) and the record would be better developed. Perhaps creating an ssr that allows for some monetary penalty (payment/reimbursement of medical records, additional fees to atty's etc would motivate the DDS level)
In the grander scheme of things I am reading a ton of complaints about what is wrong with the new ssr's (nearly all of which are valid!) However, as a collective body of individuals/firms that practice in this area, what should we be doing to undo these new horrid rules. As I see it, the policy deciders at the SSA are running amuck with power and are not taking any input from the public or the SOcial Security practice bar.
My questions to the forum are: what should we be doing? how? who? our trade organizations (NADR/NOSSCR) seem to be failing to have any influence whatsoever?
I would like to hear some discussion on the above.
@11:25
That's far too sensible.
@11:25
Your suggestion would create more work across the board in the long run, and be particularly harmful to claimants.
@9:21am You clearly are foolish if you think not having medical records on time for a hearing is malpractice. The average attorney gets one lawsuit for malpractice his entire career. I once knew a really bad elderly attorney and he actually had two.
This ALJ has a reputation for being totally obnoxious to representatives. In the end, I was informed, the records were obtained and the ALJ denied it anyway. That shows what was really going on. Some ALJ's think they are prosecutors and have the right cross examine representatives and claimants. The system was not set up that way. Any judge with that much animosity to representatives and claimants does not have the proper demeanor for the job. Unfortunately, I long ago gave up the idea that the OPM process in any way produces good ALJs.
@9:21
With that kind of reasoning, no attorney would be advised to take on any unrepped claimant shortly before a hearing unless he or she has meticulously kept the file UTD.
Geez, these ALJs want everything served to them on a silver platter. Maybe actually try and do YOUR duty to develop the record (this is a joke) and earn that 160k.
@1:53. I agree with your comments. I think there is a substantial number of ALJ's that are not using the 5 day rule to effectuate and early completion of the record but are using the rule as a sword to get out of reviewing evidence, deny claims and increase their production numbers by disposing of cases faster with less work. Further many seem to be using this rule as a license to intimidate and quite possibly cause potentially serious harm to otherwise good reps. And.. Yes, good reps often have trouble getting all records in 5 days prior all the time.
Again, I want to echo 1:23 and call for a discussion on what should be done as opposed to continuous (albeit well founded) complaining.
@1:53
I could not agree with you more that the OPM ALJ selection process does not produce the best and brightest ALJ’s. I have no doubt many others will concur.
I have my new 70 day notice. I get the requests out within ten days. I get most of them back within the 30 days. Now I'm at 40 days. I need another 30 days to try to get the remaining ones because inevitably some try to overcharge me and inevitable there are providers who still don't know anything about HI-TECH Medical Record Requests. Maybe that takes another 15 days. Then I'm at 2 weeks before the hearing. So am I suppose to go back and then re-request all the records that record events that took place since I submitted the initial requests? I don't think so. I also don't think that's what SSA means despite what it might seem. I'm not even going to bother with those last 70 days unless it's something significant like a hospitilization or a CT scan.
@3:00 although this procedure sounds reasonable on an individual case basis If you have a large volume, don't have large support staff, etc it is largely unfeasible.
The DDS level can't even properly develop the record with having more than 70 days to do it and an army to request records.
Let's face it - the rep fee cap needs to be raised. If you want me to do more admin work, I need more money for support staff. I barely make payroll and I have four employees. We are chronically behind on ordering/submitting med recs. Our hands are tied - the 5-Day Letters are a necessity for our office.
@3:55 perfect honest answer! I couldn't agree more.
now how do we make that happen?
@1:44
How would it make more work? You do realize following nearly every denial the claimant files a new claim, right?
If you really want to get serious about cutting the backlog, give reps access to the file at initial and recon, make adjudicators and reps communicate through some type of telephone conference, and raise approval rates at the lower levels by giving more discretion to adjudicators in under age 50 cases. Also eliminate the five month waiting period in initial claims to encourage representatives to help clients with initials.
All hood ideas. How do we make them happen?
The five-day rule is not intended to be beneficial to the ALJ. It's to the benefit of your client in that it allows the ALJ to hold a competent hearing, address issues in the record, and be able to make a decision at or very soon after the hearing. The ALJ will never have more empathy for your client than on the day of the hearing. The longer the ALJ has to wait to get years of records into the file to complete it, the more of a file and less of a person your client becomes again.
If a hearing is held today and the judge has to put a case into POST for 30 days because the last two years of mental health records have been diligently requested the last 3-4 weeks without any luck, then that judge has seen 40-60 other individuals and reviewed 40-60 other files between your client's hearing and when the evidence comes in. On top of that, the judge probably can't review all of those records on the day they come in because they are still prepping for upcoming cases, which again puts distance between your client's hearing and the review of the new records.
The hearing is an important part of the process, but every day delayed in making a decision from that hearing removes some of the value of the hearing. Reps like to talk about the need of a human element in decision making, but that is also part of that human element. Don't like it? Neither do I, but I don't know of any person that feels the same empathy for a person after a one-time meeting 30-60 days after that meeting.
If your proposed solution is to postpone the hearing to get those records in prior to the hearing or schedule supplemental hearings, then don't decry the immorality and absurdity of the backlog. Get the records in like @3:00 does above. The number of reps I see that request records a few weeks before the hearing from local Medicaid PCP/MH providers or the VA that are evident from DDS development is far more than it should be. I don't expect perfection and real-time record development because it's not possible, but 1+ years of missing records from obvious providers is near inexcusable and a complete disservice to your client.
Obtaining record from an entity that complies in a timely fashion is nice....but often many facilities are delinquent in their responses or try and send a prepayment letter (in violation of hippa) on or after their response is due.
I would love to believe the fantasy world that @5:57 lives in. But the reality is that rarely are all records obtained that quickly.
Schedule these further out. Allow for additional records for recent treatment to be submitted post hearing. Have pre hearings, have dds do a better job. Require reimbursement or if the claim is successfully. There are many option that are way more appropriate than these heavy handed rules.
I have many examples already where alj have used these rules in a fashion as a punishment or as a scapegoat to justify some agenda and not at all in keeping with the spirit as a tool to complete the record prior to the hearing.
IT is naive to suggest that many of these alj' s do not have an agenda of denying as many claims as possible and will manipulate the rules to do so.
@5:57pm You sound like a reasonable ALJ. Reasonable ALJ's are not the problem just like good representatives are not the problem. I always made a good attempt to the records long before any five day rule. Now that I own my practice I realize how challenging that can be when you have a full docket of cases and limited resources.
I use a medical records retrieval company and for any other reps listening, I highly recommend it. It costs only a small amount of money per record and they give you papertrail of all of the attempts made to get the records including phone calls several times a week. It's definitely more cost effective than having staff do the same thing. I work with some large firms who use it as well and those firms are better prepared than some of the other firms I work with.
Even given that there are problems. My medical records company is usually pretty keen on what they should be paying under the law for records. Still the other day a doctor billed me $79 for 11 pages of medical records. This is clearly illegal, but what choice do I really have to fight it? I'm still new to private practice and yet medical records already cost me about $500 to $1000 per month. It's challenging to come up with that money every month when SSA takes their time paying cases and if you have a fee petition you need to figure you are in for a very long wait.
All of this still assumes you can get a hold of your client to find out where they have been treating recently. That can easily eat up a month or two of phone tag or tracking down clients whose phone numbers have changed. It would be nice if all clients were organized and functional, but if they were, they would probably be working. Clients also forget about sources a lot. Do you remember every doctor you've visited and when you went to see them? I don't.
Yes, we should request records when it is getting close to a hearing, but sometimes we are just treading water getting everything thats needed for the cases two weeks from now. The new SSR does nothing to make this process easier. If SSA wants to make a difference than get congress to pass laws making medical records free in disability applications and imposing fines for doctors not complying. I've tried to get something similar passed in my own state and even the legislators I know well don't seem that receptive due to the strength of the doctors and hospitals lobby.
@10:11 well said
Again as a collective group what can/should we be doing to counter such bad procedural rules?
What influence do we have? Are any members of NADR or Nosscr reading this who have any information or who have any idea or ability to influence these policies.
While it may be hard to get records timely, it's not that difficult to submit a letter 5 days before the hearing, informing the ALJ of the missing MER.
@8:48. I think you are missing the point of the new ssr and the license it gives certain ALj's.
NADR and NOSSCR are more like toothless Bumbles these days after they took away the continuing education from them they don't have the money they used to have. Lobbyist donations are down.
The rule is forgetting that Social Security has a cap on how much it has to pay for records, but reps don't have a cap because Social Security laws indicate that Social Security has the duty to develop the record, even when the claimant is represented. If reps now have an ethical duty to request all records, and not just inform SSA, how is the attorney supposed to get reimbursed for those records when SSA doesn't withhold for costs, and medical providers can charge a dollar a page for records in Florida, for instance. If a client has a 10,000 page file in a hospital and the hospital wants $10,000, now the lawyer has an ethical duty to not just inform SSA about the records, but to put up $10,000 to request the records, and SSA won't even withhold from past-due benefits to reimburse the lawyer, even if the case is won?
The SSA rules are not supposed to distinguish between a claimant's obligation if the claimant is or isn't represented. If the SSA is obligated to order records if there is no rep, the same rule is supposed to apply if there is a representative. No additional money becomes available for ordering records simply because a representative is present.
More importantly, these unclear deadlines requiring reps to submit records "as soon they become aware of it" is a very scary way to practice because the biggest risk a lawyer has for malpractice is missing a deadline. Now all of a sudden reps are going to have continuous deadlines that pop up every time a client goes to a doctor's visit, in order to get records in, and that evidence can be blocked if the ALJ feels that the rep missed the deadline to turn in evidence because in the ALJ's opinion the evidence was not submitted "as soon as the representative became aware of it".
It's like we are being subject to more stress than a full litigation lawyer, but with the compensation of a typical legal secretary at best, and no way of being reimbursed for costs that SSA says we must incur. Even in PI cases, one side can't force the other side to request and pay for medical records. The only thing one side can do is demand that the existence of the records be disclosed so they can order them and to provide any records already in the opposing side's possession; also, at least in those cases the lawyer can recover for cost expenditures, unlike in our cases.
I asked the ALJ to subpoena all the data and notes from a physical therapist who performed an FCE on me. I asked in writing a full week before my hearing. He refused to subpoena the PT and did not give notice yo me. S simple look at the force I exerted would have debunked her claim that I was malingering on my test. He then used her claim to "show" that I wasn't "credible." Even though in all her "observations," she said my movement was consistent with the pain levels.
The one good thing that I see from the high denial rate is that it makes malpractice claims against reps more difficult to prevail. In order to win a malpractice claim, the plaintiff must show that BUT FOR the negligence of the rep, the case would have been won. So, even if the plaintiff's attorney proves negligence, it must be proven that the dib claim would have been won--a shaky probability with high denial ALJs.
@11:35
Yes, but the standard is still a mere preponderance of the evidence. Of course there will always be a question mark on whether or not the case would ultimately have resulted in a favorable determination. But who is a jury more likely to believe? A lawyer who obviously thought the case was strong enough to bring to a judge, but completely neglected their duty? I wouldn't take that chance
@11:59am You are forgetting the most important factor: Damages. Very few attorneys would be willing to bring a case for malpractice unless the dollar value of the claim is likely in excess of 100K. Even fewer would be willing to bring such cases before a jury. If it's an SSI only claim, the claimant can just refile and the damage are far less than 100K. Same with Title II where the DLI has not expired.
In the real world, you have evidence production rules that both sides need to comply with. That keeps everything in balance. Here SSA feels it's okay to toss out any ridiculous requirement because it only applies to reps and not to their own employees. Whereas reps have to continuously keep the record fully updated, DDS can still continue to issue denials based on obviously incomplete records. At this point I would welcome an adversarial system if it would require SSA to comply with the same crazy requirements they are placing on us. I much prefer Fed Court to administrative practice lately, because although it's adversarial, at least SSA is bound by the same rules as me.
5 days or 5 years it doesnt matter, with the new rule that came down on March 27. Those judges are free to rule anyway they please with less appeal able grounds. They don't even have to explain why or what now. Just denied...Next case!It is going to be hard as hell to get an approval unless you are on your dying bed and you still can be denied..complements of conservatives and the Trump administration!
@ 11:03 PM, October 03, 2017.
Your comments are spot on!
What exactly can the OGC do if this is not fully complied? Would the rep lose the right to reps claimants. Or is there some kind of sanction fee. Not sure.
9:54
you and so many other reps I cannot fathom don't know about HITECH need to friggin read up on HITECH.
After a few dedicated months of educating providers and threatening them with the pretty significant (and apparently pursued by HHS!) remedies for HITECH violations, they'll get in line.
For real, reps: it should be malpractice at this point if you 1) haven't heard of HITECH; and, 2) haven't had to use it to beat at least one provider over the head.
@5:41pm I have heard of hitech as have most other reps, so I'd really like to tell you where you can stick your arrogance. I'm working with my records company to get the letters in order, but from what I hear a lot of providers do not comply with high tech and you have to go back and forth with them over the requirements. It also only applies to providers who store records electronically and have them available in that format. You also need special forms signed by all of your clients as a regular medical release will not do so that involves time and effort to obtain. It's certainly not the panacea you make it out to be. I also know a lot of big firms who are not using it at present. Gee I wonder why they would do that if it is great as you make it out to be?
@ 1.25:
(1) DDS employees do not work for SSA, and (2) The burden of proof of disability is on the CLAIMANT - not SSA. So if you don't want to represent your claimant under the rules, don't take the case.
SSI is not an ENTITLEMENT, nor is SS Disability.
@9:02 PM
"SSI is not an ENTITLEMENT, nor is SS Disability." ?
It is an entitlement but you have to prove you meet the requirements, including proof of disability.
§ 404.315. Who is entitled to disability benefits?
(a) General. You are entitled to disability benefits while disabled before attaining full retirement age as defined in § 404.409 if—
(1) You have enough social security earnings to be insured for disability, as described in § 404.130;
(2) You apply;
(3) You have a disability, as defined in § 404.1505, or you are not disabled, but you had a disability that ended within the 12-month period before the month you applied; and
(4) You have been disabled for 5 full consecutive months.
...
Actually sou is a need based program and said IS an entitlement program.
Furthermore, this distinction is meritless to this argument about procedural policy as the procedures are virtually identical.
As a US citizen and someone who pays taxes, I have a right to practice in this area, and if the SSA tules are unfair, which this one is, I have the right to say so instead of just leaving the area. If you aren't happy with how reps do their job, why don't you get a job in the private sector instead of relying on my taxes for your pay.
After having passed the 5 day notify rule, and after the reps have learned to comply with it, the SSA has decided 4 months later that they actually aren't happy with the 5 day notify rule. So without any notice they pass a ruling to replace the 5 day notify rule with a 1,000 day + submit rule, that requires all evidence to be in 1,000 + days before the hearing and the record to be updated after every medical appointment up until the day of the hearing. There is a little problem with this ruling called the due process clause of the U.S. Constitution. The main problem is that SSA proposes to punish reps who fail to comply with deadlines described as being "due in a timely manner". Perhaps if the writers of this ruling had actually attended a law school class, they may have remembered a little concept called "void for vagueness" which makes vague laws unconstitutional. The 5 day rule, while quite obnoxious in its own right, at least was clear and gave definitive deadlines that lawyers could know how to comply with. SSA, upon seeing that somehow the 5 day rule did not immediately eliminate the backlog in 4 months (gee who would have figured), have decided that instead they needed to pass a rule that would be impossible for anyone to comply with, so as to allow ALJs to berate an rep they want for failing to comply with a vauge and undefinable impossible rule. I predict that this ruling will be tossed out as being unconstitutionally void for vagueness at the first attempt that SSA choses to enforce it, and it gets challenged in Federal Court, not to mention that this rule completely contradicts that 5 day rule that was passed as regulation. Does everybody remember SSA's policy of not letting claimant's know who the assigned ALJ's were on their cases. Gee, whatever happened to that policy I wonder? Ah, what a wonderful trip down memory lane.
There may also be 13th amendment violation against involuntary servitude in that SSA is seeking to require reps to spend their own money for records and repeatedly request records even though SSA provides us no pay (our pay comes from our clients only if we win, but SSA is trying direct the work we must do and the money we must spend). Only our clients pay us, so only clients should be allowed to tell us what work we have to do.
@11:59 AM
I was wondering when Dan Smith would weigh in. Wish all reps could be like him. Attention to detail is paramount! I bet he submits records BEFORE they're even generated! All reps should be like him! Why have an evil "volume practice" when we should, rather, have 5-10 clients MAXIMUM so that we can prepare the cases perfectly? Welfare and food stamps can supplement our meager incomes.
Greedy, greedy reps!
@12:25 Pssttt... hey hero if you are a rep you are living off of MY Taxes (you know those silly government checks you get) hahahaha!
@8:57SSa is not directing the work you do, you have the option of having the Claimant provide the records. There are dozens of ways to get the record if you want to, sorry more holes in that argument than most OTR requests!!!
@9:09
if you think communicating with your clients and obtaining their records ahead of the hearing is some sort of impossible "perfect" standard, i feel sorry for you (and your clients)
@6:38 interesting and well stated. I see that Charles Hall echoed that in his post this morning. Can this reg be challenged before enforcement? I see no reason why the attorneys at NOSSCR or some other not for profit can't challenge it now. I don't think the claims would like ripeness argument would hold water as they have already instituted them and instructed reps to start complying now.
@ Dan Smith-
I agree with your statement. The reason why ALJs get annoyed with reps that complain about these rules is because plenty of reps have little difficulty in complying with the 5-day rule or getting the record pretty complete prior to the hearing. Again, most of us don't expect perfection as it's simply not possible. However, it's truly bizarre when one group of reps manages to obtain the vast majority of the records even before the 5-day window and have even prior to this rule while another set of reps doesn't and still struggles with getting the records. They're requesting them from the same providers, they have many of the same client issues (and yes, I recognize that the disappearing or unresponsive client makes compliance with this rule exceedingly difficult... I get to deal with unrepped claimants on my end), and yet they are able to get things into the file in a timely manner. I'm not sure if the difference lies in competency, efficiency, or some other explanation.
And let me also briefly add that the worst offenders of failing to get the record complete are typically the multi-state or national firms. I end up getting the 5-day notices with 10+ providers and several years' worth of outstanding records purportedly missing (I say purportedly because a large chunk of the time, the rep actually doesn't know those records exist and is simply place holding in case they do). If resources and staffing are the issue, it doesn't make sense why the solo or small firm practitioner can complete the record while the big firms with numerous support personnel can't.
The issue I struggle with is whether I should essentially punish the claimant for their selection of representative when that rep can't do the job adequately. I have a real hard time doing that, so instead, when it's a favorable case, I challenge the fee and cut it down from the 25% or $6k in that case. I figure either the rep will learn and change their behavior, or the rep will get out of this line of work entirely. Either one is acceptable to me.
@11:50
In my opinion, that's an very reasonable and thorough synopsis of the problem at hand. At the same time, even well-prepared representatives are spooked by this new ruling because of how broad the language is and how demanding the requirements are they followed. strictly. As Charles questioned in his post, what's to stop an unreasonable ALJ (and you know they're out there) from referring one of the better reps for even minor non-compliance with this new ruling?
After all, there are some situations that will throw off even a fastidious representative:
1) doctors offices that respond to your records request but leave out something important (E.g., a diagnostic exam, therapy notes). This can be tough to spot
2) large medical networks that demand that you send a separate request to every department
3) very recent records within a week or two of the hearing
As a rep, it would be nice to have some assurance that I'm not going to get burned by an ALJ on a power trip over situations sometimes out of my control
@9:23, As a rep I DO NOT live off of government money. I live off of CLAIMANT money. I get paid from the claimant's money AFTER the claimant is awarded benefits, so I am paid with claimant money. Simply because the claimant originally got the money from the government does not mean that it continues to be government money for all eternity and that everyone paid down the line is getting government money. I am not receiving government money anymore than the claimant's landlord's is receiving government money, or anymore than the claimant's landlords grocer, who then receives money from the claimant's landlord, is receiving government money. On the other hand all the ALJ's and SSA workers ARE being paid with government money because the money goes straight from the government to them. Therefore, I and every other taxpayer pays their salary and as such we deserve to be treated with dignity and not subjected to absurd declarations in the form rulings.
Dan, I like your examples of #1 and #2 which reflect some of the time-consuming difficulties inherent in getting full production of medical records.
Some questions for you SSA workers out there.
1. When you request medical records for an unrepresented claimant, do you review the medical records received for the purpose of determining whether all of them were provided? In other words, do you question the claimant about number and dates of visits, tests done, etc. and then cross-reference that information with the records received? Do you then follow up with additional requests and inquiries if there is a discrepancy?
2. Before you request medical records from a hospital or provider with more than one department or office, do you call the medical records custodian to determine if separate requests must be made to separate offices or departments within their systems? Do you then obtain the addresses of all such offices and departments and make such separate requests?
It has been my experience that SSA does not do those things, unfortunately to the detriment of claimants relying upon them to get the records. However, my anecdotal sample size is limited. I'd like to hear from SSA workers who perform this service to see if it's a widespread problem.
@8:30
I can only speak to my experience, but it depends on the provider. Most of the providers here are good about giving everything to me when it's requested. There are only a handful of places that do imaging. There are only a handful of orthopedists, neurologists, etc. that take Medicaid. Only a handful of psych providers. I typically ask the unrepped claimant about all medical care, hospital visits, counseling, PT, imaging, etc. When they're not sure of a doc's name, I ask for general geographic areas where the providers are located and Google Maps it to figure out the right doctor. In my area, there are actually mental health providers that don't understand the concept of doctor-patient confidentiality and won't provide reps and sometimes our office with any treatment records due to this privilege. It's absurd.
My goal is and should always be to have as much info as possible before I make a decision, preferably before I have the hearing. If an unrepped claimant hasn't sent any info back or the office hasn't received it after our request, I'll almost always push to have them postpone to look into representation so I can get a more complete record. When I go through the issue I'll have by doing the hearing without the last two years of records, they'll almost always postpone to get a rep.
In complete honesty, though, I don't review every record to make sure everything is in there when it comes in unless it's something glaring, like an MRI referenced by the claimant and their PCP or something.
@7:05 Psssttt....don't those Direct Deposits say U.S. Treasury???
@12:04. I also give out checks that say Chase. Do you think that means that my bills are being paid with Chase's money? The U.S. Treasury is serving as the client's trustee to withhold and pay me money on behalf of the client. Furthermore, the U.S. Treasury is charging me a user fee to serve as Trustee. According to your logic, if I chose to not have fee withholding, and instead have the client pay me directly, then it's not government money, but if I pay the government a user fee to withhold my attorney fee then it is government money?. Pssstty....Sounds like the same kind of logic that was used to come up with SSR 17-4.
This 5 day rule is just a way for an ALJ to not have to "read" what he is just going to ignore anyway. Let's have a real adversarial process with a jury. At least that will give us (the claimants) a fighting chance.
@12:04 it wouldn't be government money if you waived direct pay and got the money directly from the client like the grocer, landlord and your other examples that do not get a check directly from the government (why don't you do that again?). BTW there is no shame being on the government dole, all the good politicians are, it just makes your high horse a lot more like a Shetland Pony, which makes the fall a bit softer.
@12:04 My pay is not government money for one simple reason: Whether I waive my fee or not, the government payout is exactly the same (PSssst, actually less if I receive a fee because then a user fee is deducted). Thus, how can I be getting government money, when my fee doesn't result in the government spending one penny more? If a client takes her SSA check to grocer for cashing, and then uses the cash to buy groceries, is the grocer government funded, because payment of check was assigned to him? I think.my high horse is very giraffe like.
12:06, do you pay a fee, to the government to process your request for direct payment from the government and receive a direct deposit from the government? At any time, is that government payment in the sole ownership of the Claimant at any time?
Spin to win, if it helps you sleep at night. Good day sir.
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