Charles Binder Responds

     I have received an e-mail from Charles E. Binder of Binder and Binder today. Here's part of it:

You have written that Binder & Binder "can no longer afford to update medical records" because of its bankruptcy filing.  That is completely untrue and I have no idea what the basis for your statement could be.  Although Binder & Binder is in bankruptcy, its primary concern remains to ensure that its clients are competently represented.  That remains my personal goal as well.

Binder & Binder's policy on medical records remains unchanged.  There are multiple components.   First, the most crucial evidence is not usually medical records, which are often illegible, vague and rarely address the client's disability, although Binder & Binder routinely seeks the doctors' office notes from treating sources.  What Binder & Binder really wants is a narrative from a treating doctor summarizing the client's history, treatment, diagnosis, prognosis, etc.  If that is not possible, Binder & Binder asks the treating doctor to fill out a questionnaire answering the questions that the SSA deems crucial when deciding disability claims.  When the doctors' records are important and Binder & Binder can not get them or the client cannot afford to pay for them, Binder & Binder asks the SSA to issue subpoenas for the records.  I note that our client retainer agreement has long provided that the client is responsible for payment for medical records.  Nonetheless, Binder & Binder routinely pays the cost of obtaining narratives and answers to questionnaires (and medical records too) when clients cannot afford to pay the doctors' bills to get the information.

     I believe that obtaining existing medical records relating to a claimant's disability which have not already been obtained by Social Security is a crucial part of representing a Social Security disability claimant. Fronting the costs of obtaining those records is a traditional part of representing Social Security claimants. Even looking at it from a strictly selfish point of view, refusing to front the costs of obtaining existing medical records seems irrational to me. The costs of obtaining the records are modest. The risk of losing because the records aren't obtained is significant. The fees from one additional case won will pay for the expenses of obtaining records for dozens of claimants. Besides, in most cases it's possible to obtain reimbursement from the client after they've been paid by Social Security.

Astrue Doesn't Think Much Of OPM's Screening Of SES Candidates

     Former Social Security Commissioner Michael Astrue doesn't think much of the job that the Office of Personnel Management (OPM) does in screening applicants for top level jobs in the Senior Executive Service (SES). Here are some quotes from a recent interview with Astrue done by Federal News Radio:

• It makes it much more difficult to get outstanding talent from the outside, and I lost a couple of really terrific people that way. And it also means that they [OPM] undervalue skill sets that are important. And it's particularly true for information technology.
• You'd try and talk to them [OPM] and they'd say, "Well, this person hasn't managed 50 people," or something like that. And we'd say it's an IT person, it's a lawyer coming out of one of the very best law firms in Washington. They typically don't get those types of experiences, that's not the way their worlds are. But they're outstanding because they have this accomplishment, this accomplishment and this accomplishment, and these are needs that the agency has. And they basically said, "We don't care."
• It's a very large agency, so it meant a lot of people were getting sort of a thank-you SES appointment right before retirement. And that's a nice sentiment, but it's not really what the SES is about. It was, I think, hurting continuity at the agency.

NADE Newsletter

     The National Association of Disability Employees (NADE), an organization of personnel involved in making disability determinations for Social Security at the initial and reconsideration levels, has issued its Winter 2015 Newsletter.

Details On Binder And Binder Bankruptcy

     A non-attorney group has a website about the Binder and Binder bankruptcy. It urges those affected to "Fire Binder And Binder Now." It has some information about Binder and Binder's bankruptcy including a document showing that Binder and Binder is planning a lot of layoffs:

• 20 Advocate employees will be fired by December 2016
• ALL 109 call center employees will be fired in the next six months
• 113 clerical employees will be fired by December 2016
• 10 Fee employees will be fired by December 2016
• 118 Hearing Casework employees will be fired by December 2016
• ALL 75 IA/Recon employees will be fired in the next year
• 14 IA/Hearing employees will be fired by December 2016
• ALL 28 Interview employees will be fired in the next six months
• 18 Management employees will be fired by December 2016
• ALL 52 Open Files employees will be fired in the next six months
• 12 Operator employees will be fired by December 2016
• 4 Travel employees will be fired by December 2015
• 34 Writer employees will be fired by December 2016
• IN TOTAL, 611 people will lose their jobs because of Binder & Binder’s bankruptcy

     According to the website, Binder and Binder came into Chapter 11 behind on health care insurance and utility payments.

     By the way, the Binder and Binder website says nothing about the bankruptcy. I suppose they don't know what to say. In the best of times the Binder and Binder website was like their TV ads, amateurish.

Happy New Year!

Binder And Binder No Longer Getting Medical Records

     I'm hearing that Binder and Binder, which is in Chapter 11 bankruptcy, is telling Social Security's hearing offices that it can no longer afford to update medical records on the people it represents. Binder and Binder is asking Social Security to do it. 

     Social Security isn't going to do it, at least not routinely. Many decades ago the agency could do this but not today. The staffing isn't there. This means that Binder and Binder's clients won't be competently represented. Most people would argue that they never were but now there's no argument.

     This raises some questions in my mind:

• What kind of idiots are running Binder and Binder now? The company is still in business. They're still paying their employees. They're still paying rent on their offices. They're still paying for phone service. How can they continue to stay in business if they're not going to pay for medical records? It's basic to what they do. Getting medical records is not inexpensive but it's not that big a deal. It only runs to about 2% of my firm's total expenditures, far less than what my firm pays in salaries and rent.
• Charles Binder is listed as the attorney of record for most of the claimants that Binder and Binder represents. While the Binder and Binder that just went into Chapter 11 bankruptcy isn't a law firm, Charles Binder is definitely licensed to practice law. What are his ethical obligations as an attorney when he knows that he is incapable of providing them with competent representation? Doesn't he have an ethical obligation to withdraw from representing them or at least to warn them? If Binder and Binder is sending letters to Social Security saying that it can no longer pay for medical records, is it sending copies of this letter to its clients? Shouldn't Charles Binder insist that this letter be sent to his clients?
• What are Social Security's obligations in this situation? Should it warn Binder and Binder's clients? Is there anything more it can do? Could it contact the New York bar about the situation since that is where Charles Binder is licensed?

What Would You Do?

     Back in May we received a fee of $5,911 on a client. That's what the "maximum fee" of $6,000 comes to after the "user fee." On November 20, we received a fee of $65.86. I sent the $65.86 back to the Social Security field office since it was in excess of what we are supposed to receive. Today, I received another check for $65.86 in the case.

     I could send the money back to Social Security but they may reissue the check to me once again. I could send the money to my client since it's almost certainly supposed to go to him but later Social Security may declare me overpaid by $65.86 and they won't care that I sent the money directly to the client. As far as they're concerned, it's always their money that's been overpaid and a direct payment to the client doesn't resolve the overpayment. I could tear up the check but the money really should go to the client. I could spend a lot of time on the phone trying to convince Social Security to take the money back from me and reissue it to my client but it's only $65.86 and it may not matter how much time we spend on the phone about this.

     What would you do?

NCSSMA Newsletter On Dramatic Decline In Service

     The National Council of Social Security Management Associations (NCSSMA), an organization of Social Security's management personnel, has issued its December 2014 newsletter. Here's an excerpt from the President's Corner column:

In Fiscal Year (FY) 2011, the wheels started coming off [at Social Security] as FOs [Field Offices] and TSCs [Teleservice Centers] went into a deep hiring freeze, with virtually no hiring for three and a half years. In addition, in FY 2011 and FY 2013, the hours FOs were open to the public were reduced by about 23% ... All of this was occurring as demands for our services increased due to baby boomers retiring and filing for disability.

Consequently, SSA’s waiting times went up, on average 50%, to levels never before seen. The average time to get an appointment increased to a month or more, while many FOs ran out of appointments each day and calendars were often extended to the maximum of 60 days.

The agency’s telephone answering rates dropped dramatically, with many FOs below 50%. TSC answering rates also took a dramatic drop and in FY 2014, with a decreased answering rate of 54%, callers waited, on average, 22 minutes to speak with a Teleservice Service Representative (TSR). 

Fortunately, FOs and TSCs were allowed to do a substantial amount of hiring in the second half of FY 2014, replacing about half of their staffing losses. SSA’s service levels will not immediately improve because new hires must be trained and staff attrition continues. Much will depend on SSA’s ability to continue to hire as annual staffing losses neutralize hiring gains.