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.