Ever Heard Of HITECH?

     If you work at a hearing office, you probably already know that Social Security disability claim files have been getting longer over the last few years. Let me explain why this is happening and why it is going to get worse over the next year or two. Also, I'll explain why this has major implications for the Social Security Administration.

     The most important reason files have been getting longer is electronic medical records. It has become easier for medical providers to create and store medical records. When they were storing medical records in physical files, medical providers had incentive to keep the records concise. How do you store a 2,000 page physical file? How does a physician make use of such a huge physical file? Once things went electronic, medical files started ballooning. Medical records systems used in many physician offices and at some large providers, including the VA, regurgitate almost the entire medical history as a new medical record every time a patient sees a physician. With VA records in particular, the new material gets lost in a mass of repetition.

     Because of electronic medical records, Social Security hearing files are exploding. Files of 1,000 pages or more used to be rare. Now, they're common. Files of 2,000 pages or more were almost never seen in years past. Now, I see them on a regular basis.

     This is going to get a lot worse because of a statute that I'll bet that almost no one at Social Security has heard of -- the HITECH Act. HITECH stands for Health Information Technology for Economic and Clinical Health Act. The Act was designed to encourage physicians to convert to electronic medical records. HITECH happens to address, in passing, a couple of problems that attorneys representing Social Security claimants have had -- slow processing of requests for medical records and excessive charges for providing those records. HITECH puts a time limit on responding to requests for medical records and prohibits providers from charging more than what it actually costs them to provide medical records as long as the records are provided in an electronic format. Attorneys are rapidly switching over to making their requests for medical records under the HITECH Act. It's cutting our costs significantly and making the turnaround time on medical records requests shorter.

     Before HITECH, attorneys were careful to specify exactly what they wanted because they would be paying for each page of medical records. Now, that's no longer important. One thousand pages of medical records are no more expensive to obtain than ten. Even when an attorney makes a narrow request for medical records, providers often send far more than was requested. If you don't have to print out the records and you're not able to charge for each page, why bother sorting out exactly what the attorney requested? Just send the whole thing. And once an attorney receives medical records, even if they are records the attorney didn't ask for he or she has no alternative but to send everything to Social Security. EVERYTHING. That's what agency regulations demands. If you don't do that, you get in trouble. I recently submitted more than 850 pages of medical records recently covering about ten months of outpatient treatment for one of my clients and the medical care she was receiving wasn't all that intensive.

     So why is this important for the agency? It takes a lot longer to review a 2,000 page file than a 300 page file even if most of the 2,000 page file is of zero consequence for the disability claim. Administrative Law Judges cannot be expected to hear 40-50 cases a month and know what they're doing if they have to deal with such huge files. There's no technical fix for this. Exhorting employees to work harder isn't going to help. Social Security is running headlong into a brick wall on this one. And those foolish regulations demanding that attorneys submit EVERYTHING are just making things worse. I told you that you were trying to go after a fly with a sledgehammer but you wouldn't listen.

Denied Disability Claimants Don't Return To Work

     The Chairman of the Senate Budget Committee asked Social Security's Office of Inspector General (OIG) to gather information on Social Security disability claimants whose have been denied on the grounds that they can still work. I don't have any idea what he thought they might find. I don't see anything in the report that he's likely to find all that interesting. However, I did find this table that I find interesting:

     I find it interesting because it displays an important fact. When Social Security denies disability claims, those denied don't often return to work. When they do return to work, they seldom earn enough to support themselves because generally they're only working part time or intermittently.
     Policy makers shouldn't comfort themselves with the thought that denying so many disability claims frees people to work by preventing their dependence upon government benefits. All these denials do is make large numbers of sick people even more poor and miserable than they would be if their disability claims had been approved.

SSAB To Hold Forum On Rep Payees

     From the Social Security Advisory Board:

The Social Security Advisory Board will host a public forum to discuss the Social Security Administration’s representative payee program. The day’s discussion will cover the process of determining benefit management capacity, best practices, collaborative efforts and new approaches from the front lines, necessary oversight, program evaluation and preparing for the future. The forum will be held on Monday, March 27, 2017 at the McGowan Theater in the National Archives Building. Please click here to register.

ALJ Charged With Misdemeanor Sexual Assault

     From the Detroit Free Press:

A federal administrative law judge is facing sexual assault charges in Livonia after prosecutors say he groped a woman at an office in the city.

The Wayne County Prosecutor's Office announced this afternoon that Judge Henry Perez, 74 of Novi will be arraigned Friday morning on three counts of fourth-degree criminal sexual conduct, all misdemeanors. The prosecutor's office said the complainant, a 33-year-old Pontiac woman, was working the evening Dec. 28, 2016 in the Social Security office at 19575 Victor Parkway in Livonia when Perez called her into his office.

Once inside, the prosecutor's office said it is alleged Perez made sexual contact with her by touching her body against her will.

Perez is a federal administrative law judge for the Office of Disability Adjudication and Review. He is currently on leave from the position, according to the prosecutor's office. ...

Trump Budget Could Lead To Massive Furloughs At Social Security

     A message from the head of the union that represents most Social Security employees:

President Trump announced yesterday that he would increase defense spending by $54 billion and cut non-defense discretionary spending by the same $54 billion.

Non defense discretionary spending is currently $666.7 billion.  A cut of $54 billion is 8.1%.

SSA has informed the union that they will be forced to furlough the SSA workforce for 5 days for every 1% cut in its administrative budget.

If Trump succeeds in reducing non-defense discretionary spending by $54 billion equally to all non-defense agencies, SSA will have to furlough SSA employees for 8 weeks or 40 days.  This would be an across the board pay  cut of 15.4%.  In addition, SSA's ability to process the public's work would collapse.

We have the fight of our lives ahead of us.

Witold [Skwierczynski, union president]

Acting OIG Head To Testify

     From the House Committee on Appropriations:

Management Challenges at the Departments of Labor, Health and Human Services, and Education and the Social Security Administration: Views from the Inspectors General

Thursday, March 9, 2017 10:00 AM in 2358-B Rayburn

Labor, Health and Human Services, Education, and Related Agencies
Witnesses

Scott S. Dahl
Inspector General, U.S. Department of Labor

Daniel R. Levinson
Inspector General, U.S. Department of Health and Human Services

Gale Stallworth Stone
Acting Inspector General, Social Security Administration

Kathleen Tighe
Inspector General, U.S. Department of Education

This Hasn't Been Merely A Matter Of Courtesy

     I'm hearing reports that several hearing offices around the country are now scheduling hearings without first contacting the claimant's attorney. This is contrary to settled practice. The purported goal is to save time. I don't know whether this is something that is supposed to become universal.

     This isn't going to work. Contacting attorneys before scheduling hearings wasn't just a matter of courtesy. It was to avoid having to reschedule hearings. If you don't contact attorneys first, you're going to have endless conflicts between hearings scheduled by different Administrative Law Judges (ALJs) and different hearing offices, much less conflicts with various obligations that attorney have with other cases pending before other tribunals much less personal obligations such as those associated with being a parent or medical care. No, using Social Security's online systems to identify conflicts won't work. Often, the attorney of record isn't the attorney who will actually appear for the hearings. Don't blame law firms for this. It happens because the agency refuses to recognize law firms. No, I don't think that having attorneys inform hearing offices of every item on their calendar will work. There's just too many items on anyone's schedule to expect this to work even if hearing offices knew exactly which attorney is supposed to appear at each hearing. I've also found that hearing office employees can be completely unrealistic about time and distance. Too many times I've hearing questions like, "Your hearing in Greenville is at 9:00, so why can't you do a hearing in Raleigh at 10:30?" coming from people who don't realize that it's a hour and a half drive between Greenville and Raleigh.
     Rescheduling hearings takes time and leaves blank spots in ALJ schedules. I really, really want to get hearings scheduled as quickly as possible but I don't think this will help. There are practical reasons that Social Security called before scheduling hearings. It doesn't take that much time and it avoids wasting time down the road.

OMB Head Wants To "Reform" Social Security Disability

     From The Hill (emphasis added):

Office of Management and Budget Director Mick Mulvaney said Monday that President Trump could soon review potential reforms to Social Security and Medicare — but he stressed that the reforms under consideration wouldn’t touch payments for current beneficiaries.

Mulvaney said he plans to prepare several entitlement reform proposals for Trump after finishing the White House’s first budget outline proposal this week. Mulvaney previously said the top-line budget proposal wouldn’t address entitlements. ...

“I’ve already started to socialize the discussion around here in the West Wing about how important the mandatory spending is to the drivers of our debt,” Mulvaney told radio host Hugh Hewitt in a Monday interview. “People are starting to grab it.”

“There are ways that we can not only allow the president to keep his promise, but to help him keep his promise by fixing some of these mandatory programs.” ...

Mulvaney said Trump wasn’t likely to propose raising the age at which someone could retire and receive full entitlement benefits. Instead, he floated changes to Social Security disability payments, which Mulvaney called “one of the fastest growing and probably one of the most abused mandatory programs in the country.” ...

     I've heard the "we'll be able to get away with cutting Social Security as long as we don't touch benefits for current recipients" strategy many times before. Anybody remember that working for Republicans? I've also heard the "disability is the soft underbelly of Social Security" strategy before but the belly has always proven a lot tougher than Republicans expected. So, please proceed GOP. There's always an election coming.

Online SSI Claims Coming On March 25 -- For Some People

     From Emergency Message EM-17008:

This Emergency Message explains the policy and procedures associated with enhancements to the online benefit application (iClaim) scheduled for release on March 25, 2017.  ...

For this first release, applicants applying online for Disability Insurance Benefits (DIB) who answer “Yes” to the question, “Do you intend to file for SSI [Supplemental Security Income]?” are able to submit an iSSI application if they meet all of the following criteria:

· Age 18 through 64;· Resides in 1 of the 50 states, the District of Columbia, or the Commonwealth of the Northern Mariana Islands;
· Alleges disability, but not blindness;
· Never married; and
· Claimant’s Social Security Number (SSN) does not exists in any SSI system such as the Modernized SSI Claims System (MSSICS) and Supplemental Security Record (SSR).

     The "never married" provision rules out most adults. Why is that necessary? I assume the last provision would rule out anyone who has filed a prior SSI claim. Why is that necessary? Are these two provisions just intended to keep the roll-out slow to allow kinks to be worked out?

Former Social Security Employee Indicted

     From the New York Daily News:

An ex-Social Security Administration worker was indicted by a Brooklyn federal grand jury for swiping social security numbers and birthdates, authorities said Friday.

Sharon Coffee-Dean, of Queens, is charged with stealing the information of 41 people and selling them to individuals who filed fraudulent tax returns.

Imposter Phishing Scheme

     From a press release:

The Acting Inspector General of Social Security, Gale Stallworth Stone, is warning citizens about a nationwide telephone “imposter phishing” scheme.  The Social Security Administration (SSA) and its Office of the Inspector General (OIG) have received several reports from citizens across the country about persons receiving phone calls from individuals posing as OIG investigators.  The caller indicates an issue exists pertaining to the person’s Social Security account or Social Security number (SSN) and directs the person call a non-SSA telephone number to address the issue. 

The reports indicate the calls include a recording from a caller stating she is “Nancy Jones,” an “officer with the Inspector General of Social Security.”  The recording goes on to say the person’s Social Security account, SSN, and/or benefits are suspended, and that he or she should call 806-680-2373 to resolve the issue.  Citizens should be aware that the scheme’s details may vary; however, citizens should avoid calling the number provided, as the unknown caller might attempt to acquire personal information. ...

Damage At Social Security Central Offices

     From the Baltimore Sun:

Severe storms brought wind gusts upwards of 60 mph Wednesday afternoon, downing trees and power lines, tearing off siding and shingles and breaking windows.  

A person was injured when a gust tore a satellite dish and part of the roof from a building on the Social Security campus in Woodlawn, agency spokesman Mark Hinkle said. A 50-by-100-foot section of the roof was stripped off, exposing heating and cooling equipment, said Natalie Litofsky, a Baltimore County spokeswoman.

Creepy Field Office Employee Quits

     From some television station that tries to keep its call letters a secret:

PORT CHARLOTTE, Fla., - A local Social Security Office worker accused of getting personal information from women while on the job, then texting them on their cell phones looking for a relationship, broke his silence exclusively with 4 In Your Corner. 

Despite the allegations, he continued to work at the Charlotte County Office until Friday, when he resigned. 

"The first day it became a news thing, I heard some off hand remarks I just couldn't take. It was the day before my birthday. I just had to explain this to my children and I left in tears," Foster said.

Ruling Rescinded

     The Social Security Administration has rescinded its Ruling 87-6 on The Role of Prescribed Treatment in the Evaluation of Epilepsy due to the adoption of new Listings for seizure disorders.

Some Relief For Confused Claimants Because "Nobody Knew Healthcare Could Be So Complicated"

     From Emergency Message EM-16033-REV:

This emergency message (EM) provides instructions for handling Medicare Part B (Supplementary Medical Insurance) enrollment requests from beneficiaries with Medicare Part A (Hospital Insurance) who also are or were enrolled in an individual Marketplace plan. It also contains instructions for Part B premium surcharge rollback for certain beneficiaries with both Medicare Part A and Part B who have or had Marketplace coverage.

Coverage under Medicare Part A meets the legal requirement for minimum essential coverage. Individuals with Medicare Part A are not eligible to receive premium and cost-sharing assistance (often referred to as advanced payments of the premium tax credit (APTC) or income-based cost sharing reductions (CSRs)) to help pay for a Marketplace plan premium and covered services to make the costs of a Marketplace plan more affordable. Individuals receiving APTC while dually-enrolled in coverage through the a Marketplace and Medicare may have to pay back all or some of the APTC received for months an individual was enrolled in both Marketplace coverage with APTC and Medicare Part A when they file their federal income tax return.

Some people may have had coverage through the Marketplace (and possibly received APTC or CSRs) before being eligible for Medicare. When first eligible for premium-free Medicare Part A, these individuals may have refused or dropped Medicare Part B coverage because the costs for Marketplace coverage, with any financial assistance they may have been receiving, was more affordable than Medicare Part B, and they believed they were eligible for APTC and CSRs. In addition, some people with Medicare Part A coverage may have enrolled in coverage through the Marketplace believing it was an alternative way to get medical coverage equivalent to Medicare Part B at a more affordable cost. These individuals may not have found out they were not eligible for APTCs or CSRs or not learned about the coverage rules prior to the end of their Medicare Initial Enrollment Period (IEP), resulting in them either 1) declining to enroll in Medicare Part B at all; or 2) enrolling in Medicare Part B during the General Enrollment Period (GEP) and being assessed a Medicare Part B late enrollment penalty.

CMS [Centers for Medicare and Medicaid Services] believes that many of these individuals did not receive the information necessary at the time of their Medicare IEP or initial enrollment in coverage through the Marketplace to make an informed decision regarding their Medicare Part B enrollment. ...

Equitable relief will be considered on a case-by-case basis for certain dually-enrolled beneficiaries (those who have or had both Medicare and Marketplace coverage) of any age who refused or dropped Part B and for those who subsequently enrolled in Part B during the 2015, 2016 or 2017 GEP. 

Beneficiaries who refused or dropped Part B may receive equitable relief in the form of an enrollment opportunity with an effective date outlined in Section E of this instruction. The ability to provide the enrollment opportunity under equitable relief is limited to Part B enrollment requests received from September 1, 2016 through September 30, 2017. No late enrollment penalty will be applied for individuals who enroll in Part B under this limited equitable relief. ...

     By the way, I had clients who asked about declining Part B for this reason and I told them not to do it. I can't think of a reason to decline Part B other than getting all of one's healthcare from the VA (and being happy with it) or living outside the U.S.
     Also, by the way, I can just imagine a Trump transition team member trying to review this Emergency Message and being completely befuddled by it. As President Trump said, "nobody knew healthcare could be so complicated."

Something We Rarely See

     Here's a report from Social Security's Office of Inspector General (OIG) about Social Security underpaying claimants. Underpayments happen a lot but OIG seems vastly more interested in overpayments. Both issues deserve attention.

SSR On Application Of Supreme Court Rulings On Constitutionality

     From Social Security Ruling 17-1p, to be published in the Federal Register tomorrow (footnote omitted):

In recent years, we have received a number of questions regarding how our reopening rules should be applied when we applied a Federal or State law in making our determination or decision, and the Supreme Court of the United States later determines that the law we applied is unconstitutional. The issue has arisen most recently in light of the Supreme Court’s decisions regarding the constitutionality of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013) and the constitutionality of State law bans on same-sex marriage in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). We are issuing this SSR to explain our policy on reopening a determination or decision due to an error on the face of the evidence when, in making that determination or decision, we applied a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, and we find that application of that law was material to our determination or decision. ...

When we make a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, and we find that application of that law was material to our determination or decision, we may reopen the determination or decision within the time frames specified in our regulations based on an error on the face of the evidence under 20 CFR 404.988(b), 404.988(c)(8), 404.989(a)(3), 416.1488(b), and 416.1489(a)(3). In this specific situation, we do not consider a holding by the Supreme Court that a Federal or State law is unconstitutional to be a “change of legal interpretation or administrative ruling upon which the determination or decision was made,” as contemplated in 20 CFR 404.989(b) and 416.1489(b). ...

When we have made a determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional, the application of that law would not have been correct and reasonable when made. Consequently, we do not interpret the change in legal interpretation criteria in our rules to prevent us from applying our reopening rules in that specific situation. Accordingly, we may reopen a determination or decision based on an error on the face of the evidence in the limited circumstance where all of the following criteria are met:

1. we made our determination or decision by applying a Federal or State law that the Supreme Court of the United States later determines to be unconstitutional;

2. we find that the application of that law was material to our determination or decision; and

3. we reopen and revise the determination or decision within the following time frames:

-- For claims under title II of the Social Security Act (Act), within four years of the notice of the initial determination, for good cause, under 20 CFR 404.988(b), 404.989(a)(3);

-- For claims under title II of the Act, at any time, if the determination or decision was fully or partially unfavorable, under 20 CFR 404.988(c)(8); and

-- For claims under title XVI of the Act , within two years of the notice of the initial determination, for good cause, under 20 CFR 416.1488(b), 416. 1489(a)(3). ...

Missing A Crucial Page

     We've had several reports from North Carolina attorneys of Administrative Law Judge decisions arriving in attorney offices that lack their final page and the final page is crucial because it contains the decisional paragraph which says what the actual decision is. This is affecting decisions from multiple hearing offices. I suspect this could be a national problem since the printing of decisions has been centralized. I hope that the field offices and payment centers that effectuate these decisions are receiving the entire decision.

"Billy With Social Security"

     From The Gazette of Colorado Springs:

Lately I've heard from a half a dozen people who have gotten phone calls from "Billy with Social Security." ... We can tell you "Billy" is not an employee of the Social Security Administration. ... They say that Billy claimed he could help them get disability payments from Social Security if they would share some of their personal information with him. ...

According to the Office of the Inspector General, which prevents and detects fraud in the Social Security Administration, they hear about crooks impersonating their employees. I'm told the intent may be to steal your identity or raid your bank account. They may ask for your Social Security number, date of birth, your mother's maiden name, or your bank account information. Those should be red flags. Don't give a stranger those details. ...

No Social Security Cuts To Be Proposed "Now"

     The Treasury Secretary said this morning that there would be no Social Security cuts proposed "now" in this Administration's first budget. I would caution that Republicans sometimes think that Social Security Disability benefits aren't really Social Security and, of course, they never regard Supplemental Security Income benefits as Social Security.