How the Proposed New Rule Could Impact Social Security Disability Recipients

Social security disability payments could be affected for hundreds of thousands of Americans on account of a proposed new rule, according to The Philadelphia Inquirer. Older people and children may experience a greater impact. The proposed rule would change aspects of Social Security’s continuing disability reviews (CDR) that are conducted to determine whether a person is still eligible to receive the disability benefits. Medical record analysis is an important requirement in this regard, and if the SSA (Social Security Administration) determines that the beneficiary is no longer disabled, the benefits would stop. The law requires the SSA to perform the CDR at least once every 3 years unless they determine the beneficiary has a medical condition that is not expected to improve sooner. A beneficiary whose medical condition is not expected to improve will be reviewed every 7 years.

The proposed new rule is open for public comment through January 2020.

SSA’s Medical Diary Categories

The SSA has categorized Medical improvement (MI) into one of three “medical diary” categories:

• Medical Improvement Expected (MIE) – the recipient’s case will be reviewed within 6 to 18 months after the benefits start.
• Medical Improvement Possible (MIP) – the case will be reviewed no sooner than 3 years.
• Medical Improvement Not Expected (MINE) – the case will be reviewed no sooner than 7 years.

What Are the Proposed Changes?

The SSA wants to ensure that they identify medical improvement at its earliest stage through the CDR process. They also want to have the flexibility to adjust the scheduling of these disability reviews where there have been advances in treatment for a person’s disability that improve his/her ability to work, or, for children receiving supplemental security income (SSI) that improve overall health and functioning.

Now, for the three changes the SSA is introducing.

• A fourth medical diary category is proposed to be added. This will be the “Medical Improvement Likely” (MIL) category. When the SSA assigns a case to this category, they would review it approximately every 2 years, which is less frequently than cases in the MIE category, but more frequently than cases in the MIP and MINE categories. The SSA would schedule cases for a full medical review (FMR) or a mail questionnaire based on their predictive model that identifies the cases most likely to show medical improvement.
• It is proposed to revise the criteria the SSA follows to assign a medical diary to each case. When the 3 medical diary categories were established in the year 1986, the SSA had provided broad descriptions of the types of cases in each category. They have also provided detailed guidelines regarding specific impairments to be assigned to each category in their employee operating instructions. While continuing that practice, they would also revise their guidance on the types of impairments considered in the 3 existing diary categories to accommodate the new MIL diary category. When making these revisions, the SSA would consider various advances in medical technology and treatment that has improved outcomes for many disabilities.
• It is proposed to retain the frequency for the MIE and MIP diary categories (6 to 18 months and 3 years, respectively), and revise the frequency with which they perform a CDR for the MINE category.

By introducing the new rule, the SSA hopes to enhance program integrity and ensure that only those who continue to qualify for benefits will receive them.

The Impact

Observers in the field say that the proposed rule with its fourth category would create an additional 2.6 million reviews over the first 10-year period. According to Jennifer Burdick, supervising attorney with Community Legal Services in Philadelphia, the new category would include at least 4.4 million beneficiaries including children and Step 5 recipients (those suffering from a combination of disabilities that make working difficult or impossible and typically receive SSI or SSDI benefits). Step 5 recipients are usually in the age group 50 – 65 years of age and suffer from maladies such as depression, herniated disc, schizophrenia or severe back pain. Those advocating for recipients are concerned about the inclusion of these people in the MIL category because these medical conditions are very likely to worsen with age and no evidence exists that such people are “likely” to improve. When there is a lack of evidence, these beneficiaries may fail to comply with the review process and lose their benefits.
You can find details regarding the proposed rule at

https://www.federalregister.gov/documents/2019/11/18/2019-24700/rules-regarding-the-frequency-and-notice-of-continuing-disability-reviews

The Appeal Process

Beneficiaries for whom the SSA terminates benefits can appeal the CDR decision.

• The primary step in the appeals process is to file a form SSA-789-U4, a one-page form that requires the beneficiary’s name, address, and social security number.
• The beneficiary can state why he/she disagrees with the CDR decision to stop the benefits.
• This form must be filed within 60 days of receiving the denial.
• However, if the beneficiary wants the disability benefits to continue during the decision period, the request for reconsideration or appeal must be filed within 10 days of receiving the notice of cessation, along with a request for continuing cash benefits, Medicare or both. The SSA allows 5 days for mail and in practice the requests must be filed within 15 days after the date on the notice the beneficiary is appealing from.
• The form to file to request continuing benefits is SSA Form 795, Benefit Continuation Election Statement.
• If the benefits have been stopped because of medical improvement, the beneficiary can request a face-to-face hearing with a disability hearing officer even at the reconsideration stage.
• If the request for reconsideration is denied, the beneficiary can file a request for hearing and another request for continuing benefits within 10 days after the notice of reconsideration is received.
• If the request for continuing benefits is filed later than 10 days after the beneficiary received the notice of cessation or reconsideration, the SSA will deny the request for continuing benefits unless the beneficiary can show reasonable cause for the late filing.
• If an appeal is denied at the hearing level and the beneficiary wishes to appeal to the Appeals Council, he/she will not receive disability benefits anymore.
• If the Appeals Council remands the case for a new hearing, the benefits will continue with no action on the beneficiary’s part. The beneficiary can also choose to continue benefits for another person receiving benefits based on the beneficiary’s earnings record.

The value of medical chart reviews in determining disability is immense. Disability attorneys utilize the service of medical record retrieval companies to collect all the relevant medical records and have them reviewed accurately.