From a new issuance in Social Security's POMS manual:
The Office of Disability Policy (ODP) is updating its instructions in DI 24555.005 for genitourinary disorders listing 6.05,Chronic kidney disease, with impairment of kidney function. The revised POMS advises adjudicators to stop using the African American estimated glomerular filtration rate (eGFR) and use the unadjusted eGFR for all claimants regardless of race. This conforms with the National Kidney Foundation (NKF) and American Society of Nephrology’s (ASN) recent recommendation to exclude race in eGFR calculation and reporting. It also aligns with the agency’s initiative to promote consistent and equitable disability determinations for African American claimants whose impairments would satisfy the criteria in listing 6.05A3 if adjudicators use the unadjusted eGFR to evaluate their claims.
DI 24555.005 includes the same instructions provided in EM-22012 SEN, Guidance on Using the Estimated Glomerular Filtration Rate (eGFR) in Cases Involving Genitourinary Disorders. Upon publication of the POMS, we will archive EM-22012 SEN.
Note that the link to EM-22012-SEN doesn't work if you're not on Social Security's network. The SEN part may be there because this was deemed "Sensitive." In any case, it was not divulged to the public at the time these new instructions were issued to agency staff. I don't even know when the staff was told about this.
This is basic stuff. It determines who wins and who loses. Why was this kept secret from claimants and their attorneys? We have an obvious need to know.
And what about African-Americans who were denied in the past under an arguably racist policy?
16 comments:
Isnt that the nature of systemic racism, keep it quiet and out of sight? These changes open a can of worms that the agency doesnt want to deal with.
Isn't this like saying that someone can equal 6.05A3 by using unadjusted eGFR?
And don't sub-regulatory policies provide similar clarifications all the time?
Not sure, but I think this was based on a criteria change set by the medical community that sets the criteria. I also think it was done to address unfair bias in the previous standards. SSA merely uses the standards they don't necessarily set them. YMMV
This would be of no use to the staff. We just take the claims, we don’t make the medical determinations.
This is more for DDS employees and ALJ’s.
At least post like you have a law degree Charles.
The prior instructions were based on widely accepted medical standards by the medical community. Not discriminately written agency policy. As this is not done by a court ruling or change in law, this is a change in position and claims will be adjudicated from the point of change (GN 04001.100).
Claims determined prior to this change will not be reviewed unless decided within 1 year prior to the change. Pending cases will be decided using the new policy.
Seriously, how are you supposed to argue for extravagant legal fees if you are not able to tell if the ALJ used the correct filing date or not?
@4:56
If the widely accepted medical standards were medically wrong, which SSA is acknowledging they were, then the prior listing standards were not correct when made. SSA thought they were, but they were wrong. Just because SSA believed they were not being discriminatory does mean the policy wasn't wrong, factually, and this is exactly the sort of issue that will be litigated. SSA also has a pretty poor track record in recent years in trying to limit the retroactivity of regulatory changes.
Listing 6.05 lists many criteria for chronic kidney disease, one of which is eGFR, but that is not even necessary - serum creatinine (which is what is use to determine eGFR) or creatinine clearance may be used instead. In addition to this lab evidence, there must be clinical evidence of one of these serious complications of kidney disease:
1. Renal osteodystrophy (see 6.00C3) with severe bone pain and imaging studies documenting bone abnormalities, such as osteitis fibrosa, osteomalacia, or pathologic fractures; or
2. Peripheral neuropathy (see 6.00C4); or
3. Fluid overload syndrome (see 6.00C5) ... ; or
4. Anorexia with weight loss (see 6.00C7) determined by body mass index (BMI) of 18.0 or less...
I doubt the results of many cases will be changed by the new eGFR standard. If someone had one of these complications, almost certainly their serum creatinine would be high enough to meet the standard, and that is not adjusted by race. With high creatinine, eGFR is not needed.
The part you don't see just tells examiners the process of making sure none of the racially categorized eGFRs are used, down to contacting the reporting source and verifying the race-neutral eGFR was used or directing them to change it to the race-neutral one.
There's nothing sinister at work there. SSA doesn't need to tell you every single bit of its administrative process. This is the equivalent of an eighth-grader thinking there are Satanic orgies going on in the teacher's lounge, instead of a bunch of working middle-aged people drinking coffee and making fun of the kids they're teaching.
"The part you don't see" is very troubling... Your "explanation" is even more so. The government rules with "the consent of the governed." And people like you wonder why we don't trust the government! There should be no "secret playbook" or "instructions," let alone any that give bias towards or against ANY "racial," ethnic, or other "group!"
...this is either a disingenuous lament for justice, or a terrible lack of understanding of the administrative law process. Would you have rather waited for a full notice and comment period, or would you have preferred that the agency immediately issue based on accepted norms in the medical community being conveyed? Hierarchy of law and speed of implementation should not be lost to you, if you regularly practice before the agency.
Some sensitive material involves fraud or makes the agency susceptible to fraud.
Field office employees aren't told how internet claims are reviewed and flagged for possible fraud. Some were but the bulk that were flagged weren't and the claimant could provide answers to questions and ID. Sometimes we'd wonder because nothing looked off to us like say a green dot routing number, etc.
Other sensitive instructions included all the security features on passports and immigration cards.
The public doesn't need to know everything. Heck, the employees don't either for that matter.
@2:56
Yeah, everyone cares about a notice and comment period for a sub-regulatory change that I'm not actually sure would even arguably be required/expected. Definitely nobody is actually concerned that SSA may have applied a factually incorrect medical standard for decades that could have screwed over a particular race, and SSA may be intending to not permit reopening of such erroneous decisions despite that being obviously required.
@4:18
Sure, there is some things that should be kept secret, but I don't see how this at all is appropriate. If SSA says it's not being applied retroactively, that's a significant legal issue. If it is, great! Representatives can screen their recent claim decisions as well as current clients to determine if they can assist them.
Genuine question - How would you have them apply it retroactively? Reopen every case that ever involved kidney function? How far back?
And don’t say, “I don’t know, that’s not my problem.” That’s not being part of the solution. What metrics do we use to determine which cases get reopened?
Wouldn’t it only apply to any case where it could be proven the claim was denied on the basis of the biased eGFR alone?
Like the previous poster mentioned, there were other standards that had to be met and despite a less than favorable eGFR, serum creatinine levels could be used to show otherwise.
How many cases do you believe the agency denied solely on the eGFR scale?
This just smells like redlining... I am not saying it is. But, your comments only reinforce this stinch.
@5:36
Retroactivity is not complicated. The regulations even would support it. At a minimum, it's obviously good cause for reopening permitting the reopening of claims within 4 years for T2 or 2 years for T16 denials in the event this change makes the difference. I would imagine very, very, very few cases would be reopened on this basis, because rarely are listings satisfied in general, kidney listings are even more rare, and then the class of individuals who would be impacted by this change I imagine would be smaller still. Almost like permitting retroactivity would have very little impact, other than it might suggest SSA actually cares to permit individuals to argue against denials premised on erroneous standards, facts which SSA is literally themselves now recognizing.
Almost all renal cases are allowed due to dialysis or transplant before they meet these lab criteria. I myself haven never used the adjusted for African American criteria and always used the one that benefited the claimant. There is no. Accurate definition for African American and it never made sense to have this differentiation. In the be careful for what you wish for realm, readjuduication prior denials will Lela cause many wh were subsequently allowed to be ceased. Because renal disease, has a seven year diary many people receive successful transplants and go on to have a fairly healthy life. Readjudicating old denials or even adverse onset would likely result in additional cessations
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