Social Security has issued a newly amended section of its HALLEX Manual on Rules and Standards Governing The Conduct Of Representatives. By the way, HALLEX doesn't stand for anything. It's just the name of the agency's Hearings and Appeals Manual. This part of the section appears to be new:
[A] representative must: ...
Disclose in writing, at the time a medical or vocational opinion is submitted to SSA or as soon as the representative is aware of the submission, if:
The representative's employee or any individual contracting with the representative drafted, prepared, or issued the medical or vocational opinion; or
The representative referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence.
NOTE 1:
The agency must report to the Office of Management and Budget (OMB) the number of disclosures received pursuant to 20 CFR 404.1740(b)(5)-(9) and 416.1540(b)(5)-(9). To assist with disclosure reporting requirements, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will ensure that any disclosures described in this subsection (Hearings, Appeals, and Litigation Law (HALLEX) manual I-1-1-40 A.5.) are filed into the electronic claim(s) file (eView) using the document type “Required Disclosure – Medical (3076)” or “Required Disclosure – Vocational (1088),” depending on the type of evidence submitted with the disclosure.
NOTE 2:
A representative must submit a separate disclosure each time they submit opinion evidence that meets the requirements in 20 CFR 404.1740(b)(5) and 416.1540(b)(5) and described in this subsection. A single disclosure for multiple opinions that meet those requirements is not sufficient. ...
I question whether the agency can impose an affirmative duty such as this "Required Disclosure" in a footnote to a staff manual. How does a mere staff manual bind members of the public? Doesn't this require notice and comment under the Administrative Procedure Act? If nothing else, this appears to violate the Paperwork Reduction Act.
It's unclear whether this provision applies to forms provided by attorneys to doctors to complete. Generally, attorneys place a legend on these forms saying where the form came from in order to satisfy the agency. Does this special reporting requirement apply to situations where the attorney merely provides a form but does not help with completing the form?
14 comments:
HALLEX is an acronym for the Hearings, Appeals and Litigation Law manual.
I have long believed that severe depression is the most disabling impairment for most of my clients. Losing interest in most activities and fundamentally giving up on life, for whatever reason, does make it impossible for those in that state to sustain work. But a problem is that for many getting treatment that might help them to return to functioning just doesn't happen. Either due to prejudice against admitting to having those problems, a lack of awareness as to just how incapacitating those problems are, or even due to lack of medical insurance or a lack of available providers, many (most) do not get the help they need. If I advise my clients to get that help, and advise them as to places they could go that could work with what coverage they have and have availability to see them, does that constitute
"referred or suggested that the claimant seek an examination from, treatment by, or the assistance of, the individual providing opinion evidence"
if afterwards, i contact that source and ask them for records of treatment or their opinion as to my client's ability to function.?
Client comes in to file a claim in January. They mention pain and mental health problems, but not seeing a therapist. I suggest they seek mental health counseling, which they do. A year later when we're getting ready for a hearing, I get a MSS from their psych. Am I now supposed to be required to remember that I had suggested my client seek treatment a year ago and attached another letter to the MSS noting this?? I mean really, what is SSA so worried about?? How about spending more time on a DOT update so my client doesn't get denied because of the alleged one million dowel inspector jobs??
They are just conforming the HALLEX to include the language that already exists in the Rules of conduct and standards of responsibility for representatives in CFR § 416.1540.
https://www.ssa.gov/OP_Home/cfr20/404/404-1740.htm
yes, I don't see how these passages in the HALLEX include anything new that hasn't already been in the regs for years
@8:23
No, simply recommending treatment more broadly without specifying provider names should not require disclosure. The grey area is providing a list of specific mental health offices. I have a list of 4-7 mental health offices that I send to clients in need of treatment, but I do not single out particular providers from those offices. My interpretation of this rule is that it only applies to referrals to individually named providers.
I remember an attorney being outraged when I questioned his referral of his client to the lawyer's brother for trestment. The medicalcare provider sent in an opinion.
Are there ARS document types for these required disclosures or are OHO staff supposed to identify and flag them?
@2:11 I don't believe SSA's blanket approach is appropriate but to be fair, I can see the concern there. Actually, I suspect the bar and medical board wouldn't be thrilled by family referrals. Not saying it would be an ethics violation per se, but yeah that's not great.
This is all the Eric Conn fall out. So it makes some sense. But lets put the shoe on the other foot. What about the DDS summary and RFC. We all know the entire medical summary and RFC are written by the DDS counselor who then asks the DDS review doc / psych to sign off. DDS never notifies the ALJ that a layman created the RFC for the physician to sign and review. I raise this on occasion with judges and note the regulations bind us so they should also bind the administration.
I agree with 902am that these rules already exist. They were in response to the Conn debacle. if you refer a client to a doctor or if you prepare a report or a form for a doctor to sign you must inform the agency. That is why I do not do either of these things and I specifically explain this to my clients.
I’m one of those laymen who take a guess at a claimant’s RFC and send it off to be signed by the in house doctor. The dr can view our FOFAEs and the med records, but like us, do they have time to thoroughly review HIT MER containing thousands of pages? Not likely. And if the claimant is under 49 then really not likely. And don’t get me started on all the records that aren’t pursued or deemed not critical, just to close cases fast.
@11:34 So you NEVER obtain treating provider opinions? What is the big deal about notifying the agency. This could be standard form letter. Many of my hearing cases would be losers without treating physician opinions.
I'm not the original poster. I hope they mean they don't DRAFT the statement for the provider. I hope they send a questionnaire or something. It does almost seem to be malpractice to not even try to get a Medical Source Statement.
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