Legal Elite Honor

July 10, 2019

I am once again pleased to be named to Florida Legal Elite, a distinguished group of the state’s top lawyers.  The official announcement will be made in the July 2019 edition of Florida Trend Magazine.

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Notice Regulations

July 10, 2019

SSA has regulations that require SSA to provide 75 days notice of a hearing.  Additionally, claimants (and their appointed representatives) must let SSA know about missing records 5 days prior to the hearing or the judge does not have to admit the evidence.  Below is a summary of how SSA has interpreted one set of facts:

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The claimant and representative were sent a noticeof hearing 64 days before the hearing. On the dateof the hearing, the representative submitted a questionnaire from a treating provider which the provider did not send to the representative untilless than five business days before the hearing,despite multiple requests. In her decision, the ALJ excluded the questionnaire as untimely. The ALJ found that the representative’s letter did not satisfy the “inform” provision of the regulations because although it explained that the questionnaire had been sent but not received it did not provide additional information about what the medical source statement included, and also found that there was no good cause to admit the questionnaire.

The court held that “while the 75-day notice of hearing and the five-day rule for submission ofevidence are two separate regulatory provisions, [they] are not distinct from one another.” As the Federal Register notice of the rule indicates, SSA intended the two provisions to balance each other. The questionnaire was received by SSA 11 days before the hearing should have been scheduled if itwere scheduled 75 days after the notice was sent,and is therefore “arguably timely.” In addition, the ALJ had not issued a decision when the evidence was received “and thus is could have been fairlyconsidered under the Regulations without sacrificing efficiency.” Since “the Commissioner’s determinationdid not result from the application of proper legal rules and was not supported by substantial evidence,” the case was remanded.

Almost every state has a cap on how much various medical providers can charge for providing medical records. Below are the rules for the Southeastern States:

Florida:

Hospitals: $1 per page, plus sales tax and actual postage. Non-paper records (such as microfiche) are subject to a charge not to exceed $2 per page. A fee of up to $1 may be charged for each year of requested records. However, this does not apply to records maintained at any licensed facility that primarily provides psychiatric care, or to records of treatment for any mental or emotional condition, or records of substance abuse. Florida Statutes, Title XXIX, Chapter 395, § 3025.

Doctors: While “the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged,” the doctor is permitted to charge $1 per page for the first 25 pages and 25¢ for each additional page. But, the doctor may charge the actual cost of reproduction for x- rays and other special kinds of records. Florida Administrative Code § 64B8-10.003. Of note, Florida is still in the process of revising Rule 64B8-10.003. The rule proposed on March 15, 2015 would change the cost for supplying records to a flat $1 per page, among other things.

Georgia: Per § 31-33-3(a) of the Official Georgia Code Annotated (O.G.C.A.), which sets forth the costs of copying and mailing patient records, these costs “shall not apply to records requested in order to make or complete an application for a disability benefits program.” Notably, according to O.G.C.A. § 31-33-3(c), this Code section does apply to a patient’s psychiatric, psychological, and other mental health records. Official Georgia Code Annotated § 31-33-3. See also Georgia Department of Community Health, Medical Records Retrieval Rates.

Alabama: Effective April 14, 2018, $1 per page for the first 25 pages, 50¢ per page for each additional page, and the actual cost of mailing the records. In addition to those fees, the medical provider can charge the actual reproduction costs of x-rays and other special medical records. For electronic copies, “a flat fee that would not exceed the cost of providing the records in paper form may be charged.” Alabama Administrative Code § 540-x-9-.10(2). Although the Code of Alabama § 12-21-6.1 still permits medical providers to charge a $5 search fee, the costs associated with “searching for and retrieving” medical records are not permitted under the HIPAA Privacy Rule and may not be charged “even if such costs are authorized by State law.”

 

 

New Ruling on Obesity

June 26, 2019

SSA issued SSR 19-2p: “Titles II and XVI: Evaluating Cases Involving Obesity” on May 20, 2019. SSA will apply the new Ruling to all newapplications filed, or to any claims pending, on or after that date. SSR 19-2prescinds and replaces SSR 02-1p: “Titles II and XVI: Evaluation of Obesity.”

SSR 19-2p explains that SSA establishes obesity as a medically determinable impairment (MDI) based on “measured height and weight, measured waistsize, and BMI measurements over time.” Specifically, a BMI of 30 or higher or “a waist size greater than 35 inches for women and greater than 40inches for men…” will generally establish an MDI of obesity. However, the Ruling emphasizes that “to have an MDI of obesity…” the person’s weight, measured waist size, or BMI must show “a consistent pattern of obesity.”

To establish obesity as a severe impairment, SSR 19-2p simply reiterates the regulatory requirement that SSA “consider all evidence from all sources” when evaluating the severity of obesity, including all symptoms, “such as fatigue or pain that could limit functioning,” and any functional limitations resulting from obesity and any other impairments. “If the person’s obesity, alone or in combination withanother impairment(s), significantly limits his or her physical or mental ability to do basic work activities, [SSA will] find that the impairment(s) is severe.” Per the Ruling, no specific weight, BMI, or a medical source’s descriptive terms forlevels of obesity (e.g. severe, extreme, morbid) establish that obesity is a severe impairment. Instead, SSA conducts “an individualized assessment of the effect of obesity on a person’s functioning when deciding whether the impairment is severe.”

From the New York Times last month:

Move over, Internal Revenue Service. Criminals now prefer the Social Security Administration as their cover agency when they try to swindle Americans over the phone.

The I.R.S. has long been a popular choice for telephone scammers, who call pretending to be federal tax representatives to extract money, personal information or both from consumers.

But federal authorities say they have seen fraudulent calls from Social Security Administration impostors “skyrocket” over the past year, overtaking the fake I.R.S. calls.

“In the shady world of government impostors,” the Federal Trade Commission said in a report in April, “the S.S.A. scam may be the new I.R.S. scam.”

People filed over 76,000 reports about Social Security impostors in the 12 months ending in March, with reported losses of $19 million, according to the F.T.C., which investigates consumer fraud. About 36,000 of the complaints and $6.7 million of the losses were reported in February and March.

In some cases, as with the I.R.S. calls, the criminals are quite aggressive and try to scare their targets into action. In one common tactic, the fake callers tell the potential victim that his or her Social Security number has been “suspended” because of suspicious activity or because it has been involved in a crime. The callers may ask their victims to confirm their Social Security numbers. They even say that the victims must withdraw cash from their bank accounts and that the accounts will be frozen if the victims don’t act quickly.

Some people are scared enough that they follow the caller’s orders to withdraw money and put it on a gift card, then give the card’s number to the criminals. Less commonly, the F.T.C. said, people have followed instructions to withdraw cash and convert it into a digital currency, by depositing it into a Bitcoin A.T.M., where it becomes accessible to the thieves.

Here are some questions and answers about fraudulent calls:

How can I tell if a call from a federal agency is legitimate?

In general, if you get an unsolicited phone call asking for detailed financial or personal information, be suspicious and don’t share any information. “The S.S.A. will not contact you out of the blue,” the F.T.C. said.

Don’t automatically trust the phone number on your caller ID screen. Criminals may use “spoofing” technology to make the call appear to be from a government number.

“We cannot trust the caller ID any longer,” said Ms. Daffan of the F.T.C.

Just last month, Gail S. Ennis, the inspector general of Social Security, warned of fake calls that appeared on caller ID to be from the office’s fraud hotline (1-800-269-0271). While employees of both the inspector general’s office and Social Security may contact people “for official purposes,” and may request that citizens confirm personal information over the phone, the calls will not appear on caller ID as the fraud hotline number, the advisory said, and federal employees will never threaten people for information.

“This is a scam; O.I.G. employees do not place outgoing calls from the fraud hotline 800 number,” the advisory said.

The best thing to do is hang up, said Amy Nofziger, director of fraud victim support at AARP Fraud Watch Network, which helps consumers who are worried about such calls.

If you’re unsure whether the call was a fake, call the agency directly — using a phone number you’ve checked independently, not one given to you by the caller. The Social Security Administration’s main number is 1-800-772-1213.

You should also report fraudulent calls. You can report them to the inspector general by calling the hotline number or going online.

You also can report it to the F.T.C. on a complaint website, identitytheft.gov/ssa, dedicated to Social Security scams.

What if I revealed my Social Security number to a caller?

Visit IdentityTheft.gov, which uses a question-and-answer format to help you protect yourself from identity theft. Steps include putting a freeze on your credit reports to prevent someone from opening new bank accounts or credit cards with your information. At a minimum, you should put a fraud alert on your credit reports, and check them regularly to spot any suspicious activity.

How should I advise an older relative who receives fraudulent calls?

People of all ages are receiving Social Security scam calls, the F.T.C. said.

But Patricia Boyle, a neuropsychologist and an associate professor at the Rush Alzheimer’s Disease Center in Chicago, said older adults were particularly attractive targets for fraud schemes, in part because they often have access to accumulated wealth.

Older adults also exhibit behaviors that may put them at risk for phone fraud, she said. In a recent study of 935 older adults that she co-wrote, more than three-fourths of the participants reported answering the telephone whenever it rang, even if the call was from an unfamiliar number. Many also said they listened to telemarketing calls and struggled with ending unsolicited calls.

The study suggested that falling prey to a telephone scam, even in people who appear to be functioning normally, may be an early warning sign of later cognitive problems or Alzheimer’s, Dr. Boyle said. That doesn’t mean that everyone who is duped will develop dementia. But it may be wise, she said, to monitor the person’s behavior for potential problems, or seek professional screening.

AARP Fraud Watch offers a free helpline for people worried about phone scams (1-877-908-3360) as well as online tips, and the Financial Industry Regulatory Authority, or Finra, offers resources for helping protect older people from financial exploitation.

For years, I have advised people to set up a Social Security account.  I have had one for years.  Today, I realized that I had misplaced my Social Security card.  I went online and within five minutes, I had requested a replacement without the inconvenience of having to go into the office.

There are many things you can do online with your account, including requesting a replacement card, estimating your benefits, change your address and get an proof of benefits letter which is often needed to obtain a loan or low income services.

From the Washington Post:

https://www.washingtonpost.com/business/2019/05/06/will-social-security-be-around-when-im-ready-retire/?utm_term=.1521eb9ac209

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