The Unsuccessful Work Attempt – Information for Claimants

Social Security Rulings should not only be quoted and utilized by representatives when navigating disability cases, they should be employed by Claimants who choose to self represent. Though one can debate the advisability of self-representation, it is clear that if one is to succeed in procuring disability benefits, then one must speak the language. Including citations and explanations of Social Security Rulings (SSRs) can help Claimant’s navigate challenging aspects of their cases, and hold Social Security accountable when analyzing the Claimant’s particular circumstances. This piece below is the first in a series of discussions discussing Social Security Rulings. Today’s discussion centers upon SSR 05-02, which applies to both Titles 2 and 16, and explains the Unsuccessful Work Attempt (UWA).

The very first step in the sequential evaluation of a Social Security case is to determine whether or not the Claimant is performing “Substantial Gainful Activity (SGA)”. In 2010 and now 2011, a non-blind Claimant must earn below $1000 in order for their work to be considered less than SGA (this is desirable in disability cases). As they develop, however, in part due to the lengthy adjudication process, many disability cases are punctuated by work attempts. Such work attempts might affect the ability of the Claimant to be considered disabled during this time period, and might even cause a Claimant to adjust his or her Alleged Onset Date (AOD) to a time after the work attempt. This can be dangerous, especially if a Title 2 Claimant is near the end of their insured status.

SSR 05-02 attempts to build some clarity around what length of work should be considered SGA. Their policy statement is as follows: “For SGA determination purposes, your substantial work may, under certain conditions, be disregarded if it is discontinued or reduced to the non-SGA level after a short time because of your impairment, or the removal of special conditions related to your impairment that were essential to your further performance of the work. The UWA criteria differ depending on whether your work effort was for “3 months or less” or for “between 3 and 6 months.” If your work attempt was “unsuccessful,” Social Security will not be precluded from finding a Claimant to be disabled during the time that they performed that work.

There are a specific set of conditions that must apply when arguing in favor of a UWA. Before the UWA begins, there must have been a “significant” break in the continuity of the Claimant’s work. A Claimant’s work is “discontinued” if (1) there is a 30 day continuous gap in employment, or (2) the Claimant was forced to another type of work or employer. To anyone who has become ill while on the job, this may sound familiar. It is interesting to note that after such a break, future work attempts may also be considered UWAs if they are preceded by the same breaks in continuity.

At this step in the analysis, it must be determined into which category the Claimant’s work falls. I drew up the following chart for easy reference.



One item that bears extra explanation is an exploration of what constitutes a Special Condition which could be considered essential to work performance.

Social Security explains them as being one of the following:

*May have required and received special assistance from other employees in performing the job; or
*Were allowed to work irregular hours or take frequent rest periods; or
*Were provided special equipment or were assigned work especially suited to your impairment; or
*Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
*Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
*Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

With this in mind, when navigating the issue of how to classify a Claimant’s work when making Application for Social Security Disability or SSI, or analyzing work that was done while under disability, it is important to address this issue using the framework set forth in this ruling. Judges will analyze a case as such, and if the Claimant or their representative can produce such an analysis, they can work to not only explain the attempt to work, but they can even strengthen their arguments.

The full text of SSR 05-02 can be found here.

For information about your Georgia Disability Case, contact Thomas O’Brien.

Threats to Soc Sec Judges on the Rise...

(...but threats are rising more slowly than percentage increases in applicants.)

In an article released yesterday by Sam Hananel, it is reported that there has been an 18% increase in threats to harm or kill Administrative Law Judges (ALJs) or their staff over the past year. This is a disturbing trend, but not altogether surprising since many individuals view these benefits are their last and final hope of securing monthly help and health benefits. For those Claimants, this is the fight of their lives that sometimes results in a denial of benefits to which they may feel entitled.

Violence is never a solution and is despicable in any form. For those folks feeling that a hearing denial represents the door being slammed shut forever, it is important to recognize that these ALJ decisions are not the end of the line for a Claimant seeking benefits. There are additional steps beyond the hearing, whose purpose is to review decisions that have been issued.

The Appeals Council is the next level of review following the hearing, and it allows for an independent review of a judge's decision. The process occurs at an arms length, so writing an effective Appeals Council Brief is crucial to success at this level, and will be the topic of a future note at this blog. After the Appeals Council, Federal Court is the next step, and so begins the more traditional form of judiciary progress. Though each sequential step of the benefits seeking process represents new and probably unfamiliar territory for Claimants, it is important to note that there are advocates available who specialize in this type of work.

One final note regarding the increased number of threats to ALJs. Between 2008 and 2009, the number of Social Security Disability applicants rose by 21%. I do not yet know what the increase has been YTD 2010 when compared with 2009, but I have to imagine that the increase in applicants continues. Also, due to the length of time it takes to get a case to hearing, I imagine that the cases being heard are largely cases begun in 2009 during the 21% increase. One case of violence threatened or actually perpetrated is too much, but I think that it is important to note that incidents of violence have actually risen at a LOWER rate than applications themselves. As such, violence is increasing more slowly than growth, which is a better message than the article originally indicates, though certainly is no consolation to Judges, their staffs, and their families.

For question about your Georgia Social Security Disability case, contact Thomas O'Brien at Feiler & Associates.

Medical Records Free for Disability Applicants in Georgia

A common complaint from applicants for Social Security is the sometimes large charges imposed upon them by hospital and physicians in exchange for providing copies of their records. This condition has gradually worsened as more and more hospitals outsource their records departments to companies whose sole purpose is to copy and supply records. Their very existence depends on charging for records up to statutory limits. When a person spends an appreciable amount of time in the hospital they create an enormous amount of paper that must then be supplied to Social Security. Without this paper evidence, a case may be incapable of succeeding, but without money, medical records are frequently withheld.

Though every state is different in the way they treat requests for medical records, Georgia is pretty clear. In O.C.G.A. §31-33-3, a fee schedule for medical records copies is laid out succinctly such that provider and document services are limited in what they can charge for duplication. The last sentence of Section (a) if this statute is most relevant, and reads,

“This subsection shall not apply to records requested in order to make or complete an application for a disability benefits program.”

This sentence is read in a variety of ways, but in no other portion of the law are fees discussed for copies made in support of a disability benefits program (Workers Compensation DOES have its own fee schedule). I read this sentence to the benefit of my clients, and it appears that courts seem to agree. In the 2008 Georgia Court of Appeals Case, Smart Document Solutions, LLC v. Hall, 290 Ga.App. 483, 659 S.E.2d 838 (Ga.App. 2008), the Court noted at page 485 that “The fee exemption, therefore, includes requests for disability benefits…”.

This seems to be a clear intent by the Georgia judiciary (and legislature) to ensure that people who are unable to work (and thus are unable to pony up for hundreds of dollars of records) have access to the medical records which may for them unlock health insurance and monthly assistance. Unfortunately, there are overly aggressive or uninformed copy companies that are now attempting to require advance payments before pulling documents. Some examples of these charges include estimates of total pages, and well as “convenience” charges that are levied. In most cases a stern phone call or letter will remove barriers such as this, but it is important to remember that as a Claimant or Practitioner, we have the ability to request that the judge issue a subpoena of the records. Certainly this is a less desirable outcome than simply getting the records, and I have heard anecdotally that some folks are paying the $10 (which comes out of the client’s pocket), but it is important to remember that when companies erect monetary barriers to securing medical records for a Georgia disability applicant, they are breaking the law and violating public policy, plain and simple.

For questions about your disability case, contact Thomas O’Brien at Feiler & Associates.

Drafting Pre-Hearing Briefs - Advice for Claimants

If I could offer Claimants once piece of advice as they advance to the hearing stage, it would be to understand their case as thoroughly as possible as it fits into the Social Security Five-Step construct. Effective arguments extend well beyond simply having a command of a medical situation, and includes understanding the provable impact of age, education, resources, work history, and residual functional capacity on a case before Social Security. One of the best exercises that one can undertake in pursuit of such an understanding is building a Pre-Hearing Memorandum. This document is prepared by the Claimant (or their Counsel) and really sets the table for the issues to be discussed at hearing. This is a great opportunity to get to the Judge early and not only present strengths, but address potential weaknesses with one's case. Preparing such a document not only forces one to gain familiarity with the medical and procedural records, but it forces a level of organization that will telegraph well to the hearing room, when the Judge will walk down a similar path of analysis when evaluating the case.

For Claimants who are seeking specific advice on drafting their brief, I am linking to a fantastic article on this subject by Disability Attorney Gordon Gates, who practices in Maine and New Hampshire. The article is titled "Ten Tips for Writing Effective Hearing Briefs", and it really distills what is important when drafting a Pre-Hearing Brief.

For questions about your Georgia Disability Case, contact Thomas O'Brien at Feiler & Associates.

There are overpayments, and then there's this...

A man in Fresno California was recently arrested for collecting more than $200,000 in Social Security benefits that were being paid to a woman who passed away in 1988. The man apparently was a friend of the deceased and shared a checking account with her, which facilitated the fraud. He has plead not guilty to the charges.

Incidents such as this are covered by the popular media every so often, and never once has the story ended with Social Security getting their money back. I imagine that this story will end the same way.

The question then becomes, what can be done about this, and it this an isolated case or are there numerous cases like this being perpetrated around the country? It would seem that there are some simple solutions that could at least manage the fraud to a level lower than 22 years of deceit. Though Social Security is notoriously overworked, requiring Claimants to check in every 3-5 years would be reasonable, and such a practice could even be automated with biometrics (though privacy advocates would have a field day with this one). Even if not automated, making benefits contingent on a visit to the local Social Security office every 3-5 years with a picture ID would help prevent fraud cases such as these from occurring at relatively small cost to the government.

For questions about Social Security, contact Thomas O'Brien at Feiler & Associates.

Compassionate Allowances - More to come?

In today's Federal Register, the Social Security Administration served notice of an upcoming hearing regarding the identification of Compassionate Allowances for Cardiovascular Disease and Multiple Organ Transplants. For those that may not be familiar with the term, Compassionate Allowances are a way for Social Security to issue favorable decisions on "easy" cases by identifying diseases and other medical conditions that invariably qualify under the Listing of Impairments based on minimal objective medical information. Compassionate Allowances allow Social Security to quickly target the most obviously disabled individuals for benefits based on objective medical information that can be obtained quickly.

Currently there are 88 such allowances ranging from Acute Leukemia to Early Onset Alzheimer's and a variety of cancers. Originally the list of allowances was 50, and the list has extended now to 88. Cardiovascular Disease and Multiple Organ Transplants will be the subject of these latest hearings.

This is significant on a couple of fronts. Compassionate Allowances are made for the purpose of eliminating the time and resources spent on evaluating certain conditions that are "slam dunks". However, this latest set of maladies has it's own features that will definitely affect their suitability for inclusion on this list. For example, many Organ Transplants will almost certainly require at minimum a closed period of disability while recovery occurs. Transplants are typically not offered where there is to be no lifestyle improvement for the patient. As such, it would seem that Social Security will be forced to review each of these cases closely at some point in the case's progression. By swapping "sooner" for "later", is there any additional benefit?

Also, cardiac cases are a difficult category to evaluate. For example, Blue Book Listing 4.02A(1) contains what appears to be a very objective standard (<30%) regarding a left ventricular ejection fraction. I have had numerous clients demonstrably meet this standard over time, and meet the requirements in 4.02B, yet still be forced to qualify by gridding out, or by demonstrating that their symptoms erode their vocational base to zero. The essence here is that cardiovascular cases historically appear to have objective standards, but do not seem to be consistently evaluated as such. With this in mind, it is this practitioner's hope that any cardiac Compassionate Allowances made will be straightforward in their requirements and granted as such.

For questions about Social Security Disability contact Thomas O'Brien at Feiler & Associates.

The Freeze is Official

It appears that the guidance given a few weeks ago has become official. For the second year in a row, there is to be no increase in the monthly sums paid to recipients of Social Security. The reason that there is no increase is because the Consumer Price Index (CPI) tracks with overall inflation. For the past two years, inflation has been negative, in part due to machinations by the Federal Reserve to prevent stagflation. As a consequence, the monthly payments to seniors remain at the current average rate of $1072.

Unfortunately for seniors, the prices of everything else have not stayed static. Even ignoring luxury items, essentials such as utility payments, food costs, transportation costs and insurance premiums have continued to rise. In effect, when costs increase at a rate that is higher than income, what results is a salary decrease, and this effect could imperil the already tenuous existence of many elderly Americans. Seniors are not the only ones experiencing this effect as salaries are frozen for those lucky enough to have jobs, while the cost of health insurance (and everything else) rises.

The timing of this "decrease" is significant as well. With midterm elections occurring in less than one month, and discontent on the rise, it would not be surprising to see senior citizens turning out in greater than average numbers to express their displeasure at the ballot box. Whether either party can solve the problem of an eroding tax base (due to unemployment and a lack of available funds for lending), and an endangerment of government programs remains to be seen.

For assistance with your Social Security Disability claim, contact attorney Thomas O'Brien at Feiler & Associates.

Too Sick to Work, Too Poor to Get Treatment…Breaking the Cycle

A common concern encountered when representing Claimants before Social Security, and in making the preparations to appear before the Administrative Law Judge, is gaps in the patient's medical treatment. As one might imagine, a Claimant gives their case the best chance of succeeding when there is a provable (and preferably multi-sourced) set of medical records that describes the patient’s debilitating condition in clear and rational detail over time. While cases without these features may succeed, and cases where these records exist may fail, treatment gaps not only are unhealthy for the seriously ill, but they also make claims for benefits more complex to navigate.

It is not difficult to imagine that such gaps would exist for someone who is unable to work (and earn money or have employee health benefits), especially if they are not blessed with supportive friends or family. Cases are even further complicated when the diagnosis is a medical condition that might possibly be mitigated by prescription medication. Social Security cannot force a Claimant to “be at their medically best” when seeking benefits, but not seeking treatment may plant the idea that a Claimant receiving treatment may not actually be disabled, which is clearly not a helpful proposition. So what can someone in this position do?

1. Contact local DFCS and Medical Providers

A meeting with their local DFCS would be in order. In addition to evaluating the Claimant for eligibility for other avenues that might provide health benefits, they will be able to suggest free or reduced cost clinics and prescription programs. Many cities have hospitals with Charity programs the Claimants should explore as well, and it is important to note that Federal Law (EMTALA) requires that hospitals evaluate and stabilize (if needed) patients that visit the Emergency Room, regardless of their ability to pay for treatment, so emergency care is always an option.

2. Contact the VA (if applicable)

If the Claimant is a Veteran, it would be advisable to discuss their options with a VA representative.

3. Discuss retroactive Medicaid with medical provider.

Finally, in Georgia (and other states as well), a Claimant or their Attorney can discuss with their medical providers the ability to retroactively file for payment through Medicaid once benefits are granted. If a specific set of steps are followed and the proper paperwork is filed starting at the time of treatment, a Medical Provider may secure payment for a patient that was otherwise self-pay, but who later secures Medicaid by way of their Social Security benefits. This is not a transparent process, but payment by Medicaid for services rendered may be secured well after the treatment is received.

The moral of the story is to consider all options when seeking treatment, and above all else, Claimants should take care of their health. The rest is incidental.

To discuss your Disability Case or Retroactive Georgia Medicaid Benefits with an experienced attorney, contact Thomas at Feiler & Associates.

A Social Security PASS for Medicaid Benefits and Much More

One of the rewarding elements of a Social Security practice is the idea that when one a practitioner succeed on behalf of a Claimant, that Claimant’s life is improved in perpetuity, or at least until they are well enough to work again. Unfortunately in some cases, even a grant of benefits is not enough to ensure that the Claimant has access to proper health care. SSDI requires a two year wait before Medicare benefits kick in, and those two years can bring serious health events that require treatment. SSI will frequently open the door to Medicaid benefits immediately, which are worth more to many Claimants than the monthly payment that Social Security makes. Medicaid generally requires smaller patient outlays, and has comparable benefit levels to other government plans. The question is, when an RSDI Claimant earns too much to qualify for SSI (and consequentially Medicaid), and can find no other way onto the Medicaid registry despite being indigent by all other measures, what are the options for healthcare, especially during the Medicare waiting period? Enter the PASS, otherwise known as the “Plan for Achieving Self-Support”.

In Georgia, and in other states where SSI grants Claimants access to Medicaid, SSDI recipients who are otherwise earning too much to qualify for Medicaid may be able to get coverage if they have minor children living with them, or if they earn an amount over the limit that may be “spent down” by medical bills, which would push them under the limits. These are not the only ways that a non-SSI recipient may unlock benefits, but it is safe to state that each gateway to Medicaid is narrowly tailored and does not serve every element of the disabled and poor population, especially those that are close to the line. To further restrict access to Medicaid, SSDI payments are generally made in greater amounts than the earnings limits set by SSI. As such, Claimants that would otherwise qualify for SSI, and thus Medicaid, are thereby precluded from tapping into these benefits. PASS can benefit those that are poor, but on SSDI, by carving off a portion of their SSDI earnings to be set aside in a pot of funds to be used to assist the Claimant in pursuit of a work goal.

The benefits of PASS are multi-fold. For the hypothetical “almost poor enough” SSDI recipient that I discussed above, the benefits are clear. If their PASS were crafted correctly and approved, this person would receive a larger monthly allotment of money since they would qualify for SSI benefits, Medicaid benefits would begin immediately since they are now under the earnings limit, and they would begin contributing to a growing a pool of funds that may be used for a variety of purposes, including starting a business, getting training, buying equipment, and other activities appurtenant to getting back on one’s feet. This is a great scenario for the Claimant, and can truly make their lives better.

So what are the requirements of participating in the PASS program? The primary requirement is an approved PASS plan. A PASS plan may be submitted on the SSA-545 form, which may be found at here. A PASS plan is not something that may be simply thrown together. There must be an actual plan including goals and time frames specific to the Claimant that must be met in furtherance of the work goal. This plan must designate what amount money will be used to reach the goal and how that money will be used. Finally the plan must set clear lines on the steps to be taken to avoid co-mingling the PASS funds with the Claimant’s other money, the SSA must approve the plan and reserves the right to conduct future reviews to assess compliance and progress. For information about the PASS program, one can find the appropriate telephone number by visiting http://www.socialsecurity.gov/disabilityresearch/wi/passcadre.htm. Another helpful website with more written detail may be found at http://www.ssa.gov/pubs/11017.html.

To speak with an attorney about your Social Security claim, please contact Thomas O’Brien at Feiler & Associates.

Congratulations to Georgia State University College of Law!

GSU Law School's stock continues to rise. In addition to the Health Law program recently receiving a ranking of 4th in the nation from U.S. News & World Report, the good news continues. National Jurist, a publication aimed at law students and those contemplating law studies, recently designated GSU Law to be at the very top of the list of best value law schools. Factors driving these rankings included bar passage rate, indebtedness, and employment statistics. This is fantastic news both for alumni as well as those deciding to continue their education with a law degree. Keep it up GSU!

Undocumented Workers, Contributions, and Citizenship - An interesting tension...

The Washington Post recently published an article that discussed the significant impact that the contributions of illegal workers have had on Social Security. The impact is quite positive because billions of dollars are being paid into a system by individuals who are unable to utilize the benefits. In essence, they are subsidizing a product that is not for their use. Stephen Goss, the Chief Actuary of the Social Security Administration states that he would estimate the benefit of these payments to number between $120 and $240 billion by 2007. Though that number is a pretty wide swipe, at the low end, this represents 5.4% of the trust fund's total assets, with the high end exceeding 10%. Essentially, Social Security would be in a much worse state if not for the contributions of the illegals. Certainly there are arguments that other programs are worse off for the presence of undocumented workers, but to say that they are only "leeching off the system" would be unfair. This also takes away a portion of the arguments of those clamoring for immigration reform.

Enter Charlie Crist, an independent (newly) candidate for one of Florida's Senate seats. Crist recently told the Huffington Post that he believes the solution for Social Security is to establish a meaningful path for those who are here illegally to achieve their citizenship and thus continue to contribute with the expectation that they may one day claim their share of the contributions.

While this may be "feel good" news to those fighting for immigration reform, this is not the silver bullet for Social Security. Adding one contributor and one taker to any equation does nothing more than to continue at current levels. Unless Social Security can use additional contributors to realize efficiencies of scale, there will be no improvement. It is this author's opinion that Social Security will realize more efficiencies through the implementation of technological improvements than it will from adding to both numerator and denominator of the Claimant calculation.

Immigration reform may come, but it is safe to say that it will arrive for the benefit for Social Security and those who Claim benefits from it.

For information about Social Security, contact Thomas O'Brien at Feiler & Associates.

DELAYED: Ways and Means Subcommittee on Social Security

UPDATE - 9/29/2010 - THIS HEARING HAS BEEN DELAYED UNTIL FURTHER NOTICE

The subcommittee will be meeting on 30-September at 10:00 am, to discuss the options for changing Social Security benefits, and the impact that changes would have on the recipients. There is very little subterfuge here, since they refer to the changes as a "loss of income", so it will be interesting to watch the changes bubble up in the months to come, and evaluate the sustainability of the program before and after the changes. Here's to creative solutions to real problems.

You can watch the hearing by going here.

Vocational Expert Testimony at Social Security Disability Hearings – Information for Claimants

In a previous article, I drafted a very brief primer on what a Claimant should expect on the day of his Social Security Disability Hearing. One aspect of many hearings that I did not develop to a great degree was the interaction with the Vocational Expert (VE). The purpose of this article is not only to explain the presence of the VE, but also perhaps to provide some direction to Claimants who will be encountering a VE at hearing. As a practitioner, it is important for me to note that this is a very sophisticated area of the Social Security Hearing process, and this note should not be viewed as a definitive explanation. It is a superficial overview with some background about what happens at hearing, and some general wisdom about how to interact with the ALJ and VE in ways that are appropriate and helpful. Simply put, this is written with a mentality of “something is better than nothing”, as opposed to being an exhaustive treatise on the subject of vocational testimony.

First off, the VE should not be viewed as an enemy. They may not be providing testimony that will be helpful to a Claimant’s case, but they are not automatically there to “put you back to work”. In fact, by asking well-targeted questions of the VE, a Claimant can improve his chances at success. The purpose of the VE at hearings is to assist the Administrative Law Judge (ALJ) in determining whether or not there are a “significant number” of jobs that a Claimant can perform, given that Claimant’s Age, Education, Previous Work Experience, and Residual Functional Capacity. They also opine on whether the Claimant cannot return to his past relevant work as he performed it, or return to the job as it is regularly performed. VEs may be called to discuss transferability of skills from past relevant work to future work as well.

The ALJ most often will open discussion with the VE once the Claimant has been questioned and given an opportunity to testify. Often the discussion that occurs first will be the ALJ questioning the VE about traits of the Claimant’s past relevant work, both from a perspective of how the work is generally performed, and how the work was performed as the Claimant described.

The framework used when providing testimony about jobs is The Dictionary of Occupational Titles (DOT), Fourth Edition, last revised in 1991. An online version of this text may be found at http://www.oalj.dol.gov/libdot.htm. It would be this attorney’s recommendation that a Claimant facing hearing view his case file and see if any of the Vocational Reports that were submitted prior to hearing include assessments of his past relevant work. If so, it would be advisable to find this job title and have the scores and descriptions readily available. A job title in this text includes the name of the job and it’s assigned ID, a description of the duties that they worker would be expected to perform, and then a series of values that look like this: GOE: 02.04.01 STRENGTH: L GED: R4 M4 L3 SVP: 5 DLU: 77. Explanations of each of these may be found at the website above, but pay particular note to SVP or Specific Vocational Preparation, which classifies the level of skill it takes to perform a job, as well as the training needed to work independently.

The VE will provide information about the Claimant’s past relevant work as the job is generally performed (straight from the DOT as applicable), and then will modify the DOT specific definition based on testimony given by the Claimant that might cause the ratings to change. Additional information is usually sought regarding what specific abilities and demands are made by a particular job, including demands like kneeling, stooping, fingering, lifting, walking scaffolds, being hot, cold, etc. By asking these questions, the ALJ is creating a baseline from which to analyze the Claimant’s ability to further work. It is important that once the Claimant has the ability to ask question of the VE that, unless the information is already volunteered, that the VE be expected to produce the descriptor values (SVP etc.) as shown above. This forces accountability on the part of the VE, and also can be used to verify the level of experience of the VE at making such determinations. For cases where the VE modifies the ratings of a job from what are shown in the DOT, a number of questions are appropriate. Some questions to ask might include (but certainly should not be limited to):

1. What changes exist between your description and the DOT definition?

2. What evidence led you to change the ratings?

3. What experience do you have that provides this knowledge?

4. When did this experience take place? For how long?

It is important here to note that taking an argumentative tone with the VE will not likely be helpful to ones case. These questions are relevant, but should never be asked from a position of arrogance or with an eye toward creating a Perry Mason “Aha!” moment. Please know that most evidence can be reasonable viewed in lights both favorable and unfavorable to the Claimant, and a sympathetic VE is a powerful ally in the hearing room.

The next set of questions between the ALJ and VE typically center on a hypothetical claimant with various health restrictions. Judges will often pose 2-3 hypothetical cases to VEs, which often range from a Claimant who is barely affected to a Claimant who is profoundly affected with health issues. The hypothetical cases will bear features of the Claimant’s illness including symptoms, physician imposed restrictions, diminished physical and mental capacity, and will even consider breaks that are required.

It is with these hypothetical cases that a motivated Claimant can provide strong evidence in support of their case. When the judge asks the VE about the various scenarios, it is important to write down all of the restrictions separately, so that one can refer back to “Scenario 1, 2 or 3” as the case may require. Usually one or two of the scenarios will establish that the hypothetical Claimant would not be capable of work. Those sample cases do not require as much scrutiny.

The hypothetical cases that require the most attention are those hypothetical scenarios that have the sufferer of the described symptoms and limitations returning to work. To create a scenario where the last hypothetical Claimant could not return to work in any job should then be the goal. As such, the questions that should be asked should play with this hypothetical scenario, rather than the Claimant’s own case. Here are some examples of questions, both good and bad.

LESS HELPFUL QUESTIONS –

1. If I am on painkillers how can I get to work?
2. If I have anxiety attacks whenever I encounter someone, how would I be able to work?
3. I can’t sit for more the 10 minutes without a break? Do you think that the factory would let me move?
4. I have to go to the Doctor at least two times a month, often unscheduled, what employer would deal with that?

HELPFUL QUESTIONS –

1. If you add the effects of narcotic painkillers, which include sleepiness and dizziness to Scenario 1, would the hypothetical Claimant be able to return to his past relevant work or would there be other work that he could do?
2. If the hypothetical Claimant in scenario 1 was on the heart medicine Lasix, which causes the need for bathroom breaks once per hour, would he be able to return to his past relevant work or would there be other work that he could do?
3. You stated earlier that the hypothetical Claimant in Scenario 1 would be able to alternate sitting and standing. Would this alternating be at the discretion of the hypothetical Claimant? Would the Claimant’s need to make this determination affect his ability to work?
4. Would a hypothetical employee who is reasonably expected to require 2-3 days off from work per month for physician appointments be able to maintain employment?

As one can see from the sample questions, there is no “master set” of questions that will automatically unlock favorable testimony from the VE. The best advice that a Claimant should follow is to be readily able to quickly identify features of their illness and symptoms of their medicine that might impact their ability to work or maintain employment. They should further be able to craft constructive questions around these features that will draw hypothetical scenarios which feature a Claimant that is unable to work. Issues such as absences, incontinence, short attention span, effects from prescriptions all will bear on employability, and it is the job of the Claimant to bring these to light.

It is important for readers of this note to know that this subject is significantly more sophisticated than the highlights struck herein. Erosion of the occupational base, skill transferability, and residual functional capacity’s effect on the ability to work are but a few of the additional issues that may impact a Claimant’s case when dealing with the testimony of the VE. This note is a superficial view and was not designed to be an exhaustive exploration of these issues, but rather a small note on how to properly interact with the VE and ALJ regarding extremely important elements of a case.

For more information about this article, or to discuss your case with an attorney, contact Thomas O’Brien at Feiler & Associates.

No cost-of-living increase in Social Security for 2nd year in a row.

For the second year in a row, it appears that recipients of Social Security will not receive an increase in the form of a Cost-of-Living Adjustment (COLA). The last increase occurred in 2009 and represented a 5.9% increase. Since then rates have remained static. Though the official announcement will be made on October 15, 2010, the underlying factors driving this have largely been calculated. Consumer prices, according to the August CPI report remain far below the peaks reached in 2008, and without a history defying rise in inflation this month, the determination will be clear.

Whether or not a special one-time sum will be paid will certainly be the subject of debate if no COLA is to be paid.

Privatizing Social Security - A new push?

As mid term elections draw closer, some interesting new poll results have come to light, and the party lines are not so clearly drawn on the two issues that individuals were asked about. The Republican agenda of pushing toward privatizing Social Security seems to be gaining a toehold, as 58% of respondents would support privatizing at least a portion of their holdings.

Falling in line with Democrat positions, it appears that over half of individuals polled DO NOT support replacing Medicare with a voucher system that would allow seniors to purchase private coverage.

The impact of these issues on the election may be palpable, but both majority positions above seem reasonable, however on the subject of privatizing Social Security, it would seem that such a move would be a concession to Wall Street, whose abusive investment behavior nearly led this country to financial ruin. Adequate protections would have to be put into place in order to garner the support of gun-shy voters who are not likely to trust Wall Street again.

On the Medicare issue, is this really a surprise? Aside from arguably not paying hospitals enough, Medicare works reasonably well. Why would an individual trade a functioning program for a plan with a private carrier where benefits would be different, network strength would become an issue, and appealing claims would become more complex?

It will be interesting to see where priorities lie come November.

See this article for all of the details, and please contact Thomas O'Brien at Feiler & Associates for assistance with disability claims.

Kicking and Screaming, Part III - Using the System

I have had the opportunity to utilize Social Security's new access to e-folders system, and it works as advertised. Upon going through the login process, I was left at a web page that very closely approximates the "Index" page on the CDs that they send. .TIF was still the format on the online versions, but there was a clear and easy way to download selected files to .PDF format.

One item of interest though... Representatives cannot simply click and download entire files in the .PDF format, they must be selected for download, and then later (in my case about 20 minutes) be "picked up" by clicking on a link that SSA emails. This works fine, but is not instant gratification that one would hope for.

All in all, this is a promising continuance of Social Security's efforts to make the application process accessible, convenient, and beneficial for Claimants.

For more information about Social Security, contact Thomas at Feiler & Associates.

Kicking and Screaming, Part II - Getting registered for e-folders...

In an entry yesterday, I spoke about the invitation that I received to the downtown Social Security Regional Office to be registered and trained on the new electronic folder access that is being offered for representatives who have clientele at the hearing level of the Social Security application process. The registration process was pretty straightforward, with my journey through security being the most arduous portion of the process.

There was a representative in the vestibule, who directed me to the second floor, and ensured that I had brought my invitation. There are three items that were non-negotiable. One needs a government ID, an invite, and a cell phone that receives texts. The cell phone issue is interesting because, though lawyers may apply to have picture cell phones in Federal Buildings, others are often barred. This rule seems to be enforced with different levels of adherence, but fo non-attorney representatives, I am sure there are accommodations.

Upon arrival to the second floor, a group of folks at a desk welcomed me, and requested to see my invitation. Upon review, they pulled some information from a stack of pre-printed envelopes that I would later find contained a user ID and Rep ID that had been assigned to me. From this desk, I was directed to a workstation with a young lady who verified my identity from my drivers license. She further compared this information with their system information, and then subsequently left to confirm something else via telephone. Once it was established that I was who I said I was, I was escorted to yet another room where I sat down with an instructor.

It was here that I was guided to the official website, and led through the registration process. While not terribly complex, it definitely bore the hallmarks of government documentation with regard to the level of security and acknowledgment of security procedures. The process also involved supplying a cell phone number which sent a series of two text messages. There were registration numbers in these messages that were further used to verify my identity and unlock my access. Once this was completed and all numbers were entered and unlocked, I was directed toward the "help" portion of the website and given a sheet of instructions with a phone number that I was to use should the online documentation not be sufficient.

Once this was complete, I was again instructed to the folks at the front desk who originally gave me my ID numbers, and they took back a sheet that was created during my registration process. From there, I was free to go, and was instructed that full files would be available through my ID within 24 hours from the registration event.

Every interaction with the SSA employees today was genial, and helpful. Furthermore, every interaction was one-on-one, despite the fact that they seemed to be running about 10-15 representatives through the process concurrently. There was very little waiting at or between stations, and everyone working there generally seemed to be enthused about the future. Ultimately, like many aspects of having the internet in our lives, I would expect this service to make the lives of Claimants easier as well as the lives of their representatives. What I hope does not happen is that an organization which is already accused of being faceless and monolithic becomes further distant from its stakeholders. If the customer service that I experienced today is any indicator, SSA really seems to be trying to implement this the right way.

Stay tuned for my experiences with the unlocked system, and for information about Social Security Disability contact Thomas O'Brien at Feiler & Associates.

Kicking and Screaming into the 21st Century...

I have received an invitation to an event that will hopefully change advocacy of disability claims for the better. Tomorrow morning I have been invited to venture to the Social Security main office in Atlanta for the purpose of registering for online access to electronic folders for my clients' cases that are pending at the hearing level. When this service is available, it is suggested that advocates will be able to view the entire contents of their clients' files, and ensure that all evidence has been submitted and exhibited. This will hopefully be the online equivalent of the hearing CDs that we receive prior to, and on the day of hearings, and it will hopefully be updated in real time. Note that there are a lot of "hopefullys" in that last sentence, but if the SSA gets even close, this will be a great step forward. It is clear that the SSA is investing heavily in technology to move the process more toward an e-experience, but how far that they will be able to push remains to be seen, especially since we are dealing with intervention from other influences such as HIPAA, ERISA, HITECH, and others.

The invitation is not clear whether or not tomorrow will result in immediate access upon registration, but rest assured that I will be sharing updates with the readers of this blog at the situation evolves.

For more information, contact Thomas O'Brien at Feiler & Associates.

Bridge the SSDI Coverage Gap to Medicare with High Risk Pools

Many folks are surprised when they learn that there is a significant waiting period for Medicare benefits from the disability onset date of an SSDI award. Unlocking insurance benefits is a powerful incentive to apply for disability, and many folks find themselves with SSDI and no insurance. Medicaid can provide options for some (especially in spend-down scenarios or those with children), but there is a brand new program that is specifically designed for folks affected in this way. They are called High Risk Pools and are a designed to allowable the purchase of affordable coverage until Health Reform is implemented.

Georgia opted not to have state involvement in administering this program, but there are still funds available for people in Georgia, and the Federal Government (via HHS) will distribute them. The purpose of high risk pools is to provide affordable health benefits coverage for those individuals rendered otherwise uninsurable by pre-existing conditions. $5 Billion has been allocated by the Federal Government for this endeavor, $117 million of which is earmarked for Georgia. The non-partisan Congressional Business Office has given guidance that these funds will probably not completely bridge the gap to 2014 when the Health Reform Laws are implemented, but for those who need coverage ASAP, and have a Medicare "light at the end of the tunnel" waiting for them, this is a worthy option to consider.

All that is required is that an individual:

• Be a citizen or national of the United States or lawfully present in the United States;
• Not have been covered under creditable coverage (as defined in Section 2701(c)(1) of the Public Health Service Act) for the previous 6 months before applying for coverage; and
• Have a pre-existing condition, as determined in a manner consistent with guidance issued by the Secretary.

As of this writing, this program is only recently available, but if you are without coverage, it is worth exploring. Visit here to view the Health and Human Services Fact Sheet.

For information about disability and health benefits law, contact Thomas O'Brien.

What Happens at a Social Security ALJ Hearing – Information for Claimants

The date of hearing is here. What should the Claimant have done before this day, what should one expect at the hearing and what should one hope to leave with? All of these questions are normal, and if answered prior to the date of hearing, they may help a Claimant be more convincing to the Administrative Law Judge (ALJ) that hears the case. This is a serious proceeding that for many has life-changing consequences and it should be treated with the gravity that it is due. The purpose of this writing is not to share hearing strategies with the reader, but more to paint a picture of what is happening and when, in an attempt to de-mystify the process and help individuals prepare for the event of their hearing. It should be noted that there are many opportunities for cases to be won and lost along the journey described herein, but for our purposes here, a general description is what will be given.

What should have been prepared and submitted prior to the date of hearing?
It is vital that all medical evidence that is available have been submitted prior to the date of hearing. Additionally, if the Claimant’s physician supplied opinion about the Claimant’s residual functional capacity (RFC), or supplied any letters sharing their opinion that their patient is disabled these should be submitted well in advance of the hearing if possible. It is always possible to submit any additional evidence on the day of the hearing, but it is advisable to get this in as early as possible as the judge forms their preliminary opinions of the case. An additional item that may be submitted is a pre-hearing brief which explains the Claimant’s theory of the case in legal terms for the judge. Generally, these are regarded as helpful if they are objective and distill the issues clearly into discernable components.

Does a hearing happen in court?
Not in the traditional sense. Hearings are held at hearing offices, and by video conference. They do not take place in traditional courtrooms and they are private affairs, meaning that there will be no gallery of observers awaiting their time with the judge while watching your case. Most hearing rooms are fairly small conference rooms that are designed to contain 4-5 comfortably at a given time. There is usually a central table upon which rests several microphones, which will be used to record the hearing. At one end of the table (and often stationed above the other room occupants) sits the judge (or the video screen), and at the other end sits the Claimant. To the Claimants side will sit his or her attorney. Most hearings last between 30 minutes and one hour, but a variety of factors may influence this.

Who is present?
There are most commonly four primary players, which may be supplemented as a case demands. Those players are the judge, the claimant, the court reporter, and a vocational expert (VE). Additional individuals that may be added include the claimant’s attorney, a medical expert (ME), and any witnesses that the claimant may wish to call. As one might imagine, the judge is in charge of the room. He or she will begin the case by stating that the case is going “on the record”, and making introductions. It is important to note that the Rules of Civil Procedure are often observed, but not expressly required by law. It is always proper to refer to a judge as, “Your Honor” or the slightly less formal “Sir / Ma’am”.

What happens once the hearing starts?
After going on the record, the judge will then swear in any individuals who will testify in the case. Those sworn are typically the Claimant, the VE, the ME, and any witnesses that the Claimant will call. At some point, he will ask if the record is complete as it currently exists. For this reason, it is advisable to view the case disc (or file) immediately before a case so that additional evidence that may not have made the record may be submitted.

Next, the judge may also ask the Claimant to stipulate to the credentials and experience of the VE or ME. Stipulating means that one acknowledges their credentials of the experts asked to testify, and agrees that their experience gives them the ability to provide information about the Vocational and Medical issues present in the case. At this point, the judge may allow a Claimant to make an opening statement or simply may dive into the question and answer process. It is important to answer questions not only clearly and with a yes or no, but also to expound on the answers. It is never appropriate to embellish the truth, but certainly presenting the truth in a light favorable to the Claimant’s case is the desired end. The case is being transcribed, so clear and audible answers are vital.

An opening statement is a great place to set the table for the issues being addressed in one’s case, but it should be objective and targeted at the true issues at hand, not simply a statement of opinion. Once a statement is made, the judge may begin asking questions of the Claimant, or may allow Claimant’s counsel to question the Claimant. The subjects most frequently asked relate not only to the medical condition, but to residential conditions, state of self-care, physician relationships, income, activities of daily care and living, support received from others in the form of money and physical assistance, and details about past jobs held. If the judge misses asking a question about what the Claimant believes is a crucial component of one of these subjects, it is important that they note this, and testify it into the record later.

If the judge asks questions first, they will then usually allow the Claimant to present their own testimony later. If the Claimant presents their case first, the opposite happens and the judge will ask questions. Once this is complete, the judge will typically call the Vocational Expert to testify. Vocational testimony is frequently an un-nerving process to Claimants, but it is important to note that this is a hypothetical endeavor. The judge usually will present a few scenarios to the VE regarding a worker of a certain age, education, and experience that exhibits certain traits or limitations. Once this presentation is made, the judge will ask if such a worker can perform the Claimant’s past relevant work or if there is work that the hypothetical worker can perform. If so, how many of those jobs exist in the national and local economy. Once the VE has opined on these hypothetical claimants, the Claimant will have an opportunity to cross-examine the VE on those particular scenarios, or develop a scenario of their own. There is a great deal of strategy that may be adopted here, and it is will be the subject of another article in the future, but it should go without saying that the Claimant wants to ensure that the hypothetical claimant accurately portrays the symptoms and challenges of the real Claimant, and cannot return to his old past relevant work or perform any other job in the economy.

Once testimony of these parties concludes, the case will most often take one of a couple of turns. In certain cases the Judge will make a favorable decision on the record. This is often good news, but can also come with some procedural pitfalls such as an adjusted onset date, that require some analysis before accepting. If the judge does not provide a decision, this is not a bad thing, the judge simply may wish to analyze the case in light of the testimony provided. The judge will close the record and dismiss all parties. At this time, the Claimant may exit the hearing area to return home. Usually in a few weeks a written decision will be submitted by the judge and be sent to the Claimant.

What information should a Claimant have available?
When in the hearing room, Claimants should always be prepared to speak in specifics about their case, condition, means of support, physician treatment, previous work, and everything related to their sickness. These are the obvious components of a case, but in addition to telling the story of a case, there are a number of procedural elements that are helpful to have available quickly. I have listed them, with brief explanations below:

• 1) Type of Benefits Sought – Knowing whether one is applying for SSI (Title XVI), SSDI (Title II) or both is extremely important, as their varying requirements alter what must be proved at hearing.

• 2) Date Last Insured – Working at a job that pays into Social Security provides a Claimant with “insurance” after laboring for a specific amount of time (often 5 out of the past 10 years). This date is significant because if a Claimant’s Onset Date occurs before this date, they are insured, if not, SSDI benefits are not available.

• 3) Prior Period of Disability – If the Claimant received disability previously, it is important to be able to produce dates, the reasons for the disability, and the benefit type received. A prior period can often strengthen a current case.

• 4) Alleged Onset Date – This is the date that the Claimant got so sick that they became disabled. This should be provable to a reasonable certainty via medical records.

• 5) Revised Onset Date – This is a revision to the date from which the Claimant claims disability, and there are a variety of reasons that this may change ranging from the judge offering benefits from a different date, to their being a lack of medical evidence supporting the original date.

• 6) Date Last Worked

• 7) Date Case Filed

• 8) Impairment Listings – If a Claimant wishes to declare that they met a listing, knowing which listing(s) they met is helpful. This is often supplied in a pre-hearing brief.

• 9) Grid Listings – If a Claimant claims that they are able to “grid out” under the Vocational Grids, then knowing and supplying which grid rule supports their claim is important.

• 10) Past Relevant Work + DOT Information – Knowing the DOT ratings of the past relevant work, and the work as performed by the Claimant is helpful when performing a grid analysis, and when evaluating vocational testimony.

In summary, the hearing is a distillation of the entire months or years long process of applying for disability benefits. It is important to be truthful, organized, and to have a sense of the critical elements of a given case. This is a process that can be somewhat scary, and absolutely life-altering, hopefully some of the uncertainty is now gone.

To ask specific questions about your disability case, contact Thomas O’Brien at Feiler & Associates.

Deposit the checks and batten down the hatches...

Social Security today released word that it is delivering monthly benefit checks a day early to assist those who live in states that may be affected by Hurricane Earl.

Michael J. Astrue, Commissioner of Social Security, today announced that about 737,000 beneficiaries in South Carolina, North Carolina, Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, Rhode Island, Massachusetts, and Washington, D.C. are affected by this early check delivery.

To those affected, good luck, good health, and stay dry.

A renewed call for Privatization?

In an article by Robert Hardaway, a Professor of Law at the University of Denver, privatization of Social Security is described (albeit from a very high level) in more clear detail than the rhetoric that I have previously heard. Professor Hardaway makes the case, and rightly so, that contributions to Social Security make no guarantees regarding the future ability to claim those funds, due to the legislative vulnerabilities of the program.

He states that privatization, as defined in his article would be a reasonable answer to this conundrum. Not only could the investment vehicle be U.S. backed securities, which eliminates the argument previously made regarding investments being subject to the whim of the market, but Social Security funds in private accounts would also be immune to confiscation and adjustment by the U.S. Government, since the alteration of these funds and/or terms would offend the Due Process clause of the U.S. Constitution.

With these features in mind, it is hard to imagine how anyone could be opposed to such a move, except those that rely on borrowing these funds for other purposes, or who intend to profit from the continued control thereof. This might be a return to the true and noble purpose that Social Security serves, and might serve to cement this program for the benefit of future generations.

Why does it take so long to get a hearing? Here's one reason...

The Office of the Inspector General release a report this month regarding claimant medical impairments that have the widest gap between being denied at the DDS level (on initial application and reconsideration) and subsequently qualifying for benefits at the Administrative Law Judge level. This report is of particular interest for a couple of reasons. First, I suspect that this report contains no surprises for any practitioner who regularly takes disability cases to hearing.

Secondly is some assumptions that may be made about the nature of the illnesses. Disorders of the back, diabetes mellitus, and disorders of the muscle and fascia are denied approximately 80% of the time at the initial and reconsideration levels, yet when argued at a hearing, they succeed between 65% - 70% of the time. What causes these cases to succeed at such an impressive rate? Is it the age of the claimant? Is the functional capacity with which the Claimant is left?

What becomes clear later in the report is a "deny 'em all and let ODAR sort it out" mentality. Only 30-40% of cases appeal beyond the original denials. Though reasons for lack of an appeal can be attributed to an absence of severity, there also may be anger and discouragement with the government. Certainly the first two levels of the evaluation of a Social Security case are to screen out cases that do not warrant benefits, but a disparity as shown in the report below must be addressed. The question is how best to do so?

The answer is stronger analysis of the Claimant's functional capacity at the initial levels. A developed, published, reviewed, and measurable framework around which to evaluate capacity to work would at least allow those adjudicating cases at the early levels to not rely on a blanket denial of such cases to screen out the malingerers. As a practitioner who has taken numerous patients to hearing on cases such as these, it is clear to me that in many, many the hearing serves little purpose other than to "let the judge have a look at them." This not only hurts the credibility of the SSA in general, but destroys the good will of an organization that is underserving those whom it is charged to support.

Georgia preparing for EDS/HP Medicaid system conversion

Editor’s Note: In 2008, EDS won a seven-year, $391 million contract to design, develop and implement a new Medicaid Management Information System (MMIS) for the state of Georgia. The EDS “Georgia interchange” system will provide the state’s 45,000 Medicaid providers with fiscal agent and enrollment broker services. It will also establish electronic health records (EHR) for Medicaid recipients in Georgia. The Georgia Department of Community Health (DCH) is consequently converting its Medicaid system from ACS, its current fiscal agent, to EDS – which was recently purchased by HP Enterprise Services (HP).

Date of Conversion
Originally scheduled to occur on July 1, 2010, DCH recently announced that the conversion will take place on November 1, 2010. HP will schedule implementation workshops in the state during the August-October timeframe. HP will also conduct ongoing workshops as part of its contract with DCH. Go to
http://providerinfo.mmis.georgia.gov/providerprereadiness/home.aspx for additional conversion readiness information.

Provider Representatives
HP’s territories will mirror those of ACS. There will be one HP representative for hospitals in the state – so physician representatives will be expected to help resolve hospital issues. HP’s Provider Representative Supervisor is Billé Frazier, who will supervise 11 regional provider representatives. Frazier says that each regional representative will be expected to conduct at least six pre-scheduled provider visits per week. E-mail Frazier at bille.frazier@hp.com.

Patient ID Cards
Every Medicaid beneficiary in the state will receive a new member ID card one
month before the switch goes live. Medicaid numbers will not change, but the contact information for claims submissions will be different.

Medicaid MMIS Web Portal
• The Web portal is expected to change its address and look – but it will essentially function the same way. Group logins will no longer be allowed – so each individual accessing the Web portal will be required to establish a personal login
• Letters containing new PIN numbers will be mailed to providers about two months before the transition
• The Web portal will include a number of features, including a claims submission function, claim status checks, eligibility verification, provider enrollment, remittance advice (RA) forms, manuals, workshop schedules, and details on patient liability. It will also eventually offer a “live support chat” feature.
• HP says that “server volume” issues are not expected to be a problem based on the extensive server load testing that has taken place.

EDI Transmission Software
HP will provide free EDI transmission software and will no longer accept the current ACS software – WINASAP2003. Providers will have to purchase their own EDI software or download a free copy of HP’s Provider Electronic Solutions (PES) software before the transition takes place.

Call Center
The call center will be staffed by three supervisors and 59 representatives. Phone support will be offered Monday through Friday from 7 a.m. to 7 p.m. HP is supposed to address issues within 72 business hours.

Billing Manuals
HP will publish three provider billing manuals – institutional, dental, and professional – which will be updated quarterly.

Prior Authorizations
Prior authorizations will be conducted directly with GMCF as opposed to an intermediary, which represents a change from current ACS procedures.

Provider Enrollment
Existing providers will not be required to re-enroll.

Other Issues
• HP has expressed some concern about adjudicating crossover claims
• HP says it will address systemic claims payment issues using banner messages on the Web portal
• HIPAA 5010 standards – which go into effect on January 1, 2012 – will likely effect change within the claims submission/status checking process, and are expected to pose hurdles early in the conversion process. Go to https://www.claredi.com/public/Final%20Rule.5010.pdf to access the Federal Register for additional information on the HIPAA 5010 standards

Thomas O’Brien, JD, MBA, is a partner with Feiler & Associates, a law practice dedicated to Medicaid eligibility, Social Security, and medical reimbursement. He can be reached at Thomas@feilerandassociates.com.

Nobel Prize Winner Paul Krugman on Social Security

In an op-ed piece in today's New York times, Nobel Prize Winning Economist and Princeton University Professor Paul Krugman raises the issue of the intensifying political storm which is engulfing Social Security. Regardless of one's political beliefs, he makes an interesting point about the measures of sustainability of this 75 year old program. He states that bad-faith accounting does not allow Social Security to recognize its 25 years of surpluses as padding, due to the fact that it has no independent existence, but rather is a part of the general budget. The same politicos continue their argument to say that Social Security must stand on its own, because future surpluses are unacceptable. Interesting...

Making an argument using both of these tools is incongruous at best, and does not address the true issue of sustainability in light of total historical financial performance. Regardless of how readers feel about the future of Social Security, let's make sure we aren't being deceived by receiving only half of the story from those trying to sell a party line.

Mental Impairments Listings to Be Changing

Already a subject of controversy in the world of disability, it appears that Section 12 of the blue book is about to experience modification. This section covers mental disorders, and there is no guidance yet as to the nature of the changes. Practitioners know already that proving disability under these listings frequently relies on subjective data and observational evidence. Certainly, the nature of these impairments require such accommodation regarding the standards that are set, but it is this counselor's hope that the SSA does not simply "solve" this problem by promulgating objective standards that exclude individuals who truly are unable to work.

Below in bold is the C portion of Blue Book listing 12.02. As even a casual observer might note, there are very few objective means to prove that this listing is met. For this reason, testimony and record development are the keystones of proving a case under this listing. An objective standard, while drawing a bright line between those who qualify for benefits and those who don't does not seem advisable in dealing with such uncertainty.

"12.02 C. Medically documented history of a chronic organic mental disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement."

Medicare Recovery Contractors to Begin Medical Necessity Reviews

Social Security opens the door to Medicare benefits for many. For younger individuals who receive SSDI, there is a 24 month wait for benefits, and for the retired population their benefits start at age 65 (though an application is required). For the past several years the Federal Government via CMS (Center for Medicare and Medicaid Services) has engaged Recovery Audit Contractors (RACs) to review payments to providers with the goal of identifying and recovering payments made in error or though improper billing practices. Until now, the RACs identified non-clinical payment issues for recovers.

Last week the CMS New Issue Review Board approved "Medical Necessity Review" Audits for 18 types of Hospital Claim and one type of Durable Medical Equipment (DME) claim. The details on which claims are to be reviewed are forthcoming, but not yet released to the public. In test iterations of medical necessity reviews, there were a number of concerns exposed, including a lack of clinical expertise as well as a lack of medicare expertise among the auditors.

The goal of such activity is ostensibly to ensure that Medicare is not paying for inappropriate or non-standard levels of care, but the natural concern that springs forth from a practice such as this is replacing the clinical knowledge of one's personal physicians with the clinical judgment of a Recovery Contractor. These contractors are paid a contingency from the proceeds of the recoveries that they identify. Though this activity is retrospective in nature, the natural results seem likely to inspire provider behavior modification, which is certainly laudable in certain cases, but in others may feel like another step toward the interference in the care of our nations Seniors and Disabled.

AHA Study: ED use by the indigent is rising sharply (SSI to blame?)

In an AHA study that spanned the decade between 1997 and 2007, the Journal of the American Hospital Association noted that Hospital Emergency Department visits rose nearly double the rate of growth for which population increases would account. The section of the population most heavily contributing to this increase are adults receiving Medicaid, whose visits per 1000 people rose from 693.7 to 947.2. This is a particularly startling trend considering that the data studied here really does not encapsulate the challenging economic times that the country has faced in the past two years.

Commentary on the study suggests that the Adult Medicaid population increasingly uses the emergency department to seek treatment due to a lack of availability of primary care from general practitioners. Clearly this contributes to crowding of the EDs, and could result in a poorer or delayed quality of care received there.

Clearly a generous portion of the Medicaid recipients are receiving their benefits as a result of qualifying for SSI. Much state aid is predicated on the receipt thereof. As one can see from the graph below, there was a considerable increase in the disabled population during the time frame of the study, and that trend continues at an accelerated rate.

All Social Security disabled beneficiaries in current-payment status, December 1970–2009

Ultimately, these issues need to be addressed immediately, or we can expect to see continued crowding in ED, decline in patient-doctor consultative time, or worse, the bifurcation of the provision of medical services into a private vs. public system, where those with money pay for quality, and those without receive poor care or none at all. Whether or not the health reform bill that was recently passed will accomplish this remains to be seen.

• Please contact Thomas O'Brien at Feiler & Associates with questions.