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?
5 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
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