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.

What are the disability listings, and why are they important?

Aside from financial considerations and work history, the other significant component of making an application for disability benefits is being able to prove the existence of a disability. “Meeting a listing” is widely regarded as the most straightforward means by which a disability is established. The “listings” are contained within the Social Security Blue Book and may be found here.

Essentially, the Blue Book is a collection of medical maladies that are categorized by body system (cardiovascular, digestive, etc.) Within each body system is a set of descriptions of medical concerns that may occur within that system, which could rationally lead a person experiencing these concerns to be declared disabled. Many of the maladies are multi-faceted, and require that multiple criteria be met. Some of these criteria are objective (cardiac left ventricular ejection fraction), and some are more subjective (marked restriction of activities of daily living).

Submitting a medical record that is able to provably demonstrate that a listing is met will make securing disability benefits substantially more straightforward, at least regarding medical concerns. Even in cases where a record does clearly demonstrate the meeting of Blue Book criteria, further development is done by the SSA for the purposes of evaluating the relative reliability of the existing medical records, as well as getting an independent opinion about the Claimant’s medical condition. In many cases, these opinions are not favorable to Claimants and for this reason, it is recommended to have a strong treatment relationship with one’s own physician.

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

Seniors Taking Early Retirement in Record Numbers

2.74 million people filed for Social Security Benefits in 2009, and the nation's unemployment is at 9.5%. This larger-than-ever draw against Social Security has created a budgetary shortfall that is projected to become the de rigeur as baby boomers move further toward retirement.

In an article released today by the Associated Press, it was noted that nearly 3 out of 4 people filing for benefits are doing so under the "early retirement" Social Security program, which notably contains benefits at a reduced level. This is a pretty clear indicator of one or more of a few things. Either individuals are scared that benefits design will reduce benefits (or increase the age for full eligibility) and they want to grandfather in, that the funds will not be available when they need them (probably unlikely in the short term), or that aged individuals who want to work are being laid off or cannot find work, and are willing to accept reduced Social Security benefits in order to alleviate the problem. Either way, the economic climate has created a ripple effect that is being felt even by all.

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

Annual SocSec Trustees Report Released - Health Reform Implicated

The Social Security Board of Trustees released their annual report on Thursday, August 5, 2010 and the financial outlook for Social Security remains substantially unchanged. Highlights include the following:

• The trust fund is estimated to exhaust in 2037, at which time the tax revenues being collected are expected to fund 78% of benefits.
• The disability trust fund is expected to exhaust in 2018, which will require a re-allocation of funds to support continued benefits payouts.
  
• In 2015 and thereafter, tax revenues will fall below program costs. This estimate now is one year sooner than described in last year's report.
• During 2009 Social Security paid benefits of $675 billion dollars to 53 million beneficiaries.
• The cost to administer Social Security ($6.2 billion dollars) was only 0.9% of total expenditures.

This forth bullet point is somewhat significant in the sense that, when viewed without scrutiny, it conveys a level of efficiency that most people do not experience in dealing with Social Security. In fact, I would submit to my readership that this number will continue to drop in the years to come, and not due to increase efficiency (though certainly hope springs eternal). This is an exercise in using statistics to tell a certain story.

Any mathematical percentage contains by necessity a numerator (in this case administrative expenditures) and a denominator (in this case total expenditures). One can lower the ratio by either decreasing the numerator, which in this case would indicate cutbacks in overhead, or one can lower the ratio by increasing the denominator (in this case total benefit payouts). Since we are still very much on the front edge of the baby boomer retirement cycle, benefit payout amounts will rise at increasing rates for the foreseeable future, meaning that administrative expenses, which operate as a lagging indicator, will probably fall. For this reason, it is important that we, as concerned citizens, ensure that we understand movement on both sides of this ratio.

Proponents of the recently passed Healthcare Reform bill are citing the savings that the bill is projected to create (via efficiency measures and IT improvements) should change the somewhat disheartening profile of Social Security funding for the positive. The true impact of the reform bill will not likely be felt in the near future due to the extensive changes that it will require, and the litigation that is likely to happen concurrently with its implementation.

• For more information about Social Security, contact Thomas O'Brien or visit http://www.feilerandassociates.com.

Proving Disability in SSI and RSDI Cases

To be found disabled, you must be unable to do any substantial work because of your medical condition(s), and your medical condition(s) must have lasted, or be expected to last, at least 1 year, or be expected to result in your death. (see the Social Security website)

One of the most common questions that claimants have regarding their disability cases is how to prove their disability most effectively. At hearings, my admonition to clients and their supporting witnesses is to always tell the truth, but do so in the light most sympathetic to their cause. However, in the interest in resolving cases at a point earlier than a hearing, the biggest difference-maker in proving disability is the level to which medical records may convince an adjudicator of one's disability.

To that end, here are my cornerstones of medical evidence. Of course income and financial means will often bear on the quality of medical care (and as such medical records) available, but these should always be in the back of a claimant's mind as they interact with their caregivers. Failure to meet the standards herein may not doom a case to failure, but success in meeting these standards will certainly make proving disability a more clear-cut affair.

Strength of Opinion - The most vigorous opinion regarding a claimant's disability should come from their own doctor. This can often be summarized in a letter of disability or an RFC (residual functional capacity) report that the claimant's physician may fill out, but it should also be a recurring thread in treatment records. Notations and recommendations that the claimant must curtail daily activities, and notations of specific life-limiting symptoms from the condition or the treatment are very helpful in examining a case.

Continuity of Care - Another helpful feature that can help cases succeed is demonstrable continuity of care. If a claimant has seen a physician for the entire course of their illness, there is an implied level of credibility that may be inferred, especially where symptoms worsen. Continuity of care may be established through regular treating physicians, or in the cases of indigent persons who cannot privately source and schedule care, it may take the form of ER records. Regular visits to the ER for emergency care related to a claimant's illness can convey a level of continuity of symptoms that may be convincing as well. This is not to suggest that claimants should visit the ER for every minor medical symptom, but in the cases of true medical emergencies, EMTALA will require that the hospital treat a patient, regardless of factors such as insurance coverage, etc.

Number of Opinions - Most people seek a second opinion when dealing with medical challenges. In disability cases, many diseases that claimants experience are specialized to a particular body system. As a result of this, it is very helpful not only for a patient's primary care doctor to opine on a heart condition (for example), but also to seek opinion from their cardiologist. Certainly the admonitions regarding continuity of care, and strength of opinion noted above bear on the inclusion of these records in case evidence, but ultimately, the more professional, provable, and unbiased opinions that may be offered on a claimant's behalf, the more provable their case becomes.

No Interfering Opinions - The previous points represent ideals that patients should seek when building their record of disability. This final point represents an ideal to be avoided. In interacting with the physicians that treat them, claimant's should make every effort to avoid behavior that could cause their treating physicians to doubt their symptoms or word. Two major classes of such damaging opinions are of particular concern: malingering and substance abuse. Malingering is the fabricating or exaggerating the symptoms of mental or physical disorders for a variety of secondary gain, in this case the gain might be prescriptions, drug benefits, or even continued treatment. Malingering can cause additional challenges to a case because the testimony upon which a claimant should most desire to rest on is the indirect testimony made my their physician records. If those records do not support disability, or create doubt as to its existence, cases become much more complex. Allegations of substance abuse are are much more directly damaging to a case. Though this is a very complex issue that cannot be fully addressed in a note such as this, it is important to note that Social Security will look at the impact that the abuse has on a given medical condition, and may disregard that condition when evaluating a claim if it believes that ceasing the abuse of the substance will cause that condition to improve.

In summary, with regard to claiming disability, it is important to view medical records as claimant testimony, and do everything to ensure that medical records operate as case support, rather than create additional obstacles to overcome.

• For more information, contact Thomas at Feiler & Associates.
  

Gender Wage Disparity is Quantifiable through Social Security Disabiity Payouts

A significant graph was published in the Social Security Annual Statistical Report this year. Not only does it provide a quick average of monthly payments made to disabled workers and their families, it also provides a quick look at the disparity in actual earnings between men and women.

This is demonstrated in two places. First, it may be seen in disabled worker payouts (based on their earnings), where the men's payments were approximately 25% greater than the benefits paid to women, and secondly in widow(er)s' benefits, where men's benefits were significantly less due to the payment being based on their wives contributions.

In a 2009 report titled Women's Earnings in 2008, the U.S. Labor Department reported women's median wages to be 79.9% of men's. It would seem that biological and social factors are large contributors to this disparity since the report found that women who never married earned 94.2% of their unmarried male counterparts' earnings which demonstrates a much smaller differential.

Since the average disabled worker is 53 years old, it becomes obvious that this metric is a lagging indicator of wage disparity, and it will be interesting to track how much this gap will close in years to come.

From The Social Security Statistical Report:

"The average monthly benefit for disabled-worker beneficiaries is higher than that paid to disabled widow(er)s or disabled adult children. The reason for the difference is that disabled workers receive 100 percent of the primary insurance amount (PIA), compared with 71.5 percent for disabled widow(er)s and 50 percent for disabled adult children (if the worker is disabled or retired) or 75 percent (if the worker is deceased).

Because men have traditionally had higher earnings than women, their monthly benefit is higher. This is most obvious in the disabled-worker group. Benefits for disabled widow(er)s and disabled adult children are dependents' benefits, so their monthly benefit is a function of the worker's earnings. Therefore, a disabled widow's average benefit tends to be higher than that of a disabled widower because a male worker's earnings are higher than a female worker's. Benefit amounts are about the same for men and women in the disabled adult children group."

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