202-822-2155 eva@nadr.org Julie Phelps 202-822-2155 admin@nadr.org
NADR PO Box 96503 Washington, DC 20090-6503 Phone: (202) 822-2155 Fax (972) 245-6701 Web Site: www.nadr.org
NATIONAL ASSOCIATION OF DISABILITY REPRESENTATIVES 4 MEDICAL RECORDS BEST PRACTICES THIRD QUARTER 2017
IN THIS ISSUE:
6 ON THE RECORD : CIOX BILLING 9 VETERAN MEMBER SPOTLIGHT : JOETTA STROMATT 15 ADMIN ESSENTIALS ; TIPS & TOOLS 16 ADR MEMBER SPOTLIGHT ; MICHAEL WENER
NADR NEWSLETTER THIRD QUARTER 2017
I N TH IS ISS U E 3 A NOTE FROM THE PRESIDENT 4 MEDICAL RECORDS BEST PRACTICES 6 ON THE RECORD : CIOX BILLING 8 NEW MEMBER SPOTLIGHT : CINDY LANCASTER 9 VETERAN MEMBER SPOTLIGHT : JOETTA STROMATT
CONTENTS
11 MEDICAL EXPERT CROSS EXAMINATION CONFERENCE DECONSTRUCTED 15 ADR SPOTLIGHT : MICHAEL WENER 16 NADR BOARD OF DIRECTORS
A NOTE FROM THE PRESIDENT All leaders stand on the shoulders of giants who walked before them. It’s a rare privilege to get to actually know those giants personally. To me it seems surreal, with an organization as wide and deep as ours, that I have become only the ninth NADR President. That compares me to William Henry Harrison, the ninth U.S. President, who inauspiciously died of pneumonia 32 days after inauguration! Here’s hoping I can stick around longer. Since joining the NADR Board in 2012, I have clung to the spirit, drilled into me by those giants still around, of our dual mission -- education of and lobbying for our Members. I will continue to champion those missions.
We face uncertain and perilous times, both as an organization and as individual representatives. To thrive -- maybe even to survive -we must work together. Join me and your fellow members in our group endeavors like “Legislative Blitz” and Public Awareness campaigns. In lean times, our first instinct often is to cut back. To withdraw. To “trim the fat”. But for me, time and time again, I have been shown that in order to keep something you must be willing to give it away. Share of yourself for our common cause.
Philip Litteral,
NADR President
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MEDICAL RECORDS BEST PRACTICES HITECH goes mainstream—Start using it today! One of our important tasks as representatives is obtaining medical records, and we know the process well. We use a HIPAA authorization signed by our client and make the request directly to the provider. That approach allows the provider to charge fees under whatever state guidelines may apply for copies of those records. But now, there is a better way. Using HITECH, you can have your client request their records from the provider, and direct that those records be sent to you. Using that approach the fees will be limited, in most cases, to $6.50. https://www. hhs.gov/hipaa/for-professionals/privacy/guidance/ access/index.html#maximumflatfee The rules are simple. The patient’s (client’s) request must be in writing and signed by the client. It must state the name and address of the person the records will be sent to. The records must be maintained in electronic form, and the request must state that they are to be forwarded in an electronic format (psychotherapy records are excluded). A HIPAA authorization does not need to be included, since the patient is requesting a copy of their own records and designating where they want them to be sent. It should not matter that you forward the patient/client letter to the provider: the request for
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a copy of the record is from the patient/client, not from the representative. Another advantage of using HITECH to obtain your client’s records is that the provider must respond to the HITECH request within 30 days to avoid noncompliance with the Office of Civil Rights, the agency charged with HIPAA enforcement. See 45 C.F.R. §164.524 (b) (2) (i). Although the benefits of using HITECH are becoming better known, many representatives still have reservations about HITECH due to significant pushback from the ROI (Release of Information) companies. Although this sort of pushback from a provider may clearly be noncompliant, dealing with it may be time consuming and not beneficial to your client’s case. However, the main purpose of this brief article is to share some good news: Ciox Health, the largest ROI company, has recently issued a memo (as shown) stating that the fee for records maintained and requested in electronic format is limited to $6.50. Ciox Health handles record requests for two thirds of the hospitals in the U.S., a total of 75,000 hospital and provider sites.
MEDICAL RECORDS BEST PRACTICES Continued Now that they have thrown in the towel and started following HITECH, other ROI companies are likely to follow suit. Speaking of suit, this news from Ciox Health comes in the midst of a class action lawsuit filed against them and their predecessors Healthport and IOD, ROI companies which Ciox merged with in 2015 (Leon Kuchenmeister v. Healthport Technologies LLC, et al., Case No. 1:17-cv-01001, in the U.S. District Court for the District of Georgia, Atlanta Division). The plaintiffs in the case claim their HITECH medical records requests were responded to with invoices totaling hundreds of dollars. While the lawsuit is just getting started, the guidance from Ciox Health to their partner providers may be a sign that they’ve felt the pressure, suggesting also that other ROI companies will fall in line. In my opinion, there is a developing consensus in government that a patient’s medical records should be made available to them at no cost. Consider this statement from the U.S. Department of Health and Human Services (hhs.gov) regarding fees that may be charged to patients who request records under the Privacy Rule (HITECH Act):
“Further, while the Privacy Rule permits the limited fee described above, covered entities should provide individuals who request access to their information with copies of their PHI free of charge. While covered entities should forgo fees for all individuals, not charging fees for access is particularly vital in cases where the financial situation of an individual requesting access would make it difficult or impossible for the individual to afford the fee. Providing individuals with access to their health information is a necessary component of delivering and paying for health care. We will continue to monitor whether the fees that are being charged to individuals are creating barriers to this access, will take enforcement action where necessary, and will reassess as necessary the provisions in the Privacy Rule that permit these fees to be charged.” https:// www.hhs.gov/hipaa/for-professionals/privacy/ guidance/access/index.html I believe that the more aggressively we pursue our client’s rights to records under the current HITECH guidelines, the sooner we will see the day when our client’s records are provided to them at no cost, as they should have been all along. John R. Heard
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ON THE RECORD CIOX BILLING In mid-July, a correspondence was sent out regarding the newly created guidelines for patient pricing by the Office of Civil Rights and Ciox Health’s intention to be in compliance with those guidelines. In keeping with this, we have concluded our pricing review and will be applying the patient pricing structure as listed below: ➤ Electronic to electronic (CD/USB/Portal): $6.50 flat fee Plus sales tax as applicable ➤ Hybrid (paper AND electronic) to electronic: $6.50 flat fee for the portion of the record maintained electronically Plus $2.00 representing our average labor cost to create and deliver the portion of the record maintained in paper for a standard request Plus sales tax as applicable ➤ Paper to electronic: $2.00 representing our average labor cost to create and deliver the record for a standard request Plus actual postage if mailed Plus sales tax as applicable ➤ Electronic to paper or paper to paper: $2.00 representing our average labor cost to create and deliver the record for a standard request plus Plus $0.05 per page for supplies (paper and toner) Plus actual postage if mailed Plus sales tax as applicable ●
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Here are a few examples of the new pricing: ➤ Records stored electronically (e.g., EMR) and delivered electronically (e.g., CD, USB, website/download portal) - the charge will be $6.50 ➤ Records stored in paper and delivered electronically - the charge will be $2.00 plus actual postage ➤ Records stored in paper and delivered in paper - the charge will be $2.00 plus $0.05 per page for the cost of supplies (paper and toner) plus actual postage This pricing applies to all patient and patient directive requests for medical records.
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NEW MEMBER SPOTLIGHT CINDY LANCASTER What is your vocational background prior to representation? I spent twenty-five years as a foreign missionary. When I returned to the States, I had to jump back into the work force. After a few different jobs, I found myself working at The Kirkpatrick Law Firm. It was the most rewarding job I had experienced since the mission field. I worked diligently to learn about the disability claim process. How long have you been a representative?
2 months. I passed the EDPNA exam May 2017.
How did you get involved in representation? For five years I worked on cases from intake to preparing briefs for the attorney. I went to several hearings with the attorney to observe the process. I enjoyed helping the claimants at all levels. When the opportunity presented itself to become an EDPNA, I began to prepare myself for the EDPNA
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exam. After passing, I started my own company and began accepting cases. What made you decide to become an NADR member? I knew how important it was to have a network of people in the same profession. We learn from each other’s experiences. I found NADR to be a positive group of professionals. What do you hope to get out of your NADR membership? My NADR membership provides me with points of contact such as the wonderful NADR staff. The website provides material to read through for more information on almost any given topic. I couldn’t imagine being in this profession without NADR. I look forward to my first conference.
VETERAN MEMBER SPOTLIGHT JOETTA STROMATT What did you do before you became a representative? I had two prior “careers” that helped shape my attitude about how I wanted to help others. I was a senior citizen advocate for many years, and truly loved each of those elderly clients. I was there to help, whether it be to fill in for a missing person at the weekly bridge party, review stock portfolios, drive them to doctor visits, go on vacations with them, or at the end of their lifetime, arrange for funerals and organize disbursement of assets. This was a truly fulfilling position because I knew without a doubt that I made a positive difference in their quality of life. Knowing that helping others was a way of life for me, I became a Certified Financial Planner and Stockbroker, with the intent of helping clients reach their financial goals. Unfortunately, my timing was terrible with this career. During the dot.com craze when investors were making money hand over fist, I had too many clients that wanted to take equity out of their homes to invest. In good conscience, I couldn’t (and wouldn’t) recommend these strategies. This position left me with the determination that instead of helping people with lots of money get even more money, I needed to be able to help those less fortunate. This led me to becoming a representative for the disabled. How long have you been representing clients? I filed my first pro-bono claim in 1995, and found it very interesting that filing for Social Security Disability was not a simple process; instead, it is governed by tons of rules and regulations. With a background in tax advice, I found a lot of similarities in the two programs. It was about eight years later that I became a representative, opening an office in Lexington, KY in 2005, and another
office in Colorado Springs, CO in 2013. What do you enjoy most about this profession? First and foremost, I enjoy getting to know my clients and helping them gain the benefits they deserve. Once I talk with them and get an understanding of their impairments, then I start putting the puzzle pieces together, explaining to them how we need to structure the case for an easier approval. I enjoy the problem solving and when I find that listing or ruling that may apply, I can’t help but do a fist pump (much like finding a tax loophole)! I know I have made a difference when I leave the hearing room and get a hug from my client. Secondly, I am so grateful for all the friends that I have made in this business. Fellow NADR members, judges, vocational experts, court reporters, Social Security employees and clients are now included in my growing circle of friends. If I have a problem or question involving disability, I know that I can reach out to these individuals, and they are all so very willing to help! How long have you been involved in NADR and how has it impacted your professional goals? I attended my first NADR conference in Albuquerque in 2007. The first person that I met at the registration table was Al Gonzalez, who immediately made me feel like I was not at a conference, but rather a large family gathering. And now each conference attended feels just like that… a family reunion. I attended the first conference specifically for the study session for the EDPNA exam. Michele Marois presented this session and gave me the tools I needed to pass Continued on page 10 NADR NEWS | THIRD QUARTER 2017
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VETERAN MEMBER SPOTLIGHT Continued the exam. Because of NADR I met an employee of Social Security, Sue Brown, who invited me to sit on a panel of representatives to develop the electronic access, a system that has made our jobs so much easier. Because of NADR, Art Kaufman invited me to go to Washington to lobby for making the direct fee payment pilot program a permanent one. Jeanne Morin met with us in Washington, and gave us an eye opening education about politics! Because of NADR I have some amazing friends that continue to encourage me to move forward. I love this organization, and all it stands for! What legislative issue or membership benefit would you like to see NADR focus on/offer in the next few years? A current issue that stands out is our credibility. With the press blasting news about Social Security disability fraud, it is important for each of us to maintain our respectability in this profession. As NADR members, we know there is a sharp distinction between our members and the individuals that have
admitted to committing disability fraud. We know that we hold ourselves to a higher standard, and we may want to consider just how we can let the public know that the ones committing fraud are the exception rather than the rule. An issue that has been brought up in the past, and continues to be a huge problem for many of us who are self-employed is the issue of health insurance. This nation is going through significant changes in health care, and we are all facing increased health insurance premiums. If there is a way to pool together as a group to get better health insurance rates, it would benefit many of our members. NADR continually works on issues that are important to all of us, including how we as representatives can interact with field offices, ODAR offices, and the payment centers. I understand that each SSA employee is overworked, and it is easy to ignore our requests, but with more efficient communication, it would make our jobs, and theirs, much easier.
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MEDICAL EXPERT CROSS EXAMINATION CONFERENCE DECONSTRUCTED As a disability representative, I would never feel comfortable continuing to practice if I did not attend NADR’s annual conference. Doing so forces me to stay on top of things and the conversations in the hallways end up being more valuable even than the substantive presentations or the written materials. With respect to my own written materials, they are an invaluable resource to go back to after the conference. However, there is no substitute for going to the conference itself. To begin with, I always find more current points of emphasis on the day I give the presentation that often relate to issues and stories I have heard about from other representatives, while attending the conference. It is the decisive moment of the year to get truly current and challenge myself. The questions that are provided by attendees also shape the flow of the presentation in real time. Most importantly, the dozens of in person conversations I have with folks on the issues I present on cannot be replicated in any other way other than by attending the conference. These discussions inevitably lead to ongoing and focused feedback loops on the techniques suggested and the experiences of utilizing them in the real world. The conference and all that happens at it is the one aspect of deep learning and self-improvement that cannot be replicated in any other format. The talklist is great. The written materials are great. Phone calls are great. But the exchanges that occur at the conference and the motivation they provide are simply invaluable.
Dave Chermol, Esq.
Below is an excerpt from Dave’s Reno conference materials that we thought was extremely helpful, especially to new representatives who might be intimidated by the cross examination process. Though, as usual, all levels of representatives will likely find these tips useful.
What impact do the new regulations on the evaluation of medical source opinions have on cross-examination? Not as big an impact as you might think. It is true that we have lost the legal rule that presumptive deference should be given to a treating physician’s opinion. However, is there some way to get that rule back in a factual manner even though it has been lost to us as a matter of law? I think there is. Will it work in every case? No. But, again, you cannot lose a case twice. If an ME just gave terrible testimony that likely sinks your client’s application, then why not try this suggested cross and see what happens? This ME cross is effectively a modified version of my previous “reasonable” ME cross that has been revised in light of the changes in the regulations. So here are my suggested questions for ME cross, all of which are premised upon the presumption that you have obtained a favorable medical opinion from a treating source: 1) “You previously testified that the claimant suffers from the following conditions: (name them one by one), correct?” First, you have built in issue agreement. You are starting off with a proposition that the ME will not disagree with. This is an important psychological first step. Also, you have injected the word “suffers” into the mind of the ME, again building another little psychological foothold.
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CONFERENCE DECONSTRUCTED Continued 2) “Please describe the most likely symptoms you would find in a person with those diagnoses.” The odd psychological thing that tends to happen here is that the ME describes your client’s symptoms specifically and not the most likely symptoms someone with these conditions would describe. Any subsequent reviewer of the record, like a federal court, will be struck by how your client’s symptoms dovetail almost exactly with what the ME said in response to this question. In other words, you indirectly boost your client’s credibility. 3) “From your review of the record, you would agree that appropriate treatment modalities and medications have been employed in this case, correct?” Obviously do not ask this question if the ME’s testimony so far shows he would not agree. Also, notice that we are now strongly leading the witness, as you must on cross-examination, which makes it psychologically and socially uncomfortable for him to disagree with you. 4) “From your review of the record, you would agree that appropriate diagnostic testing has been ordered, correct?” This is a heads we win and tails SSA loses question. If the ME says “yes” then this tends to bolster the actions and opinions of the treating doctor. If the ME says “no” then you ask follow up questions about what diagnostic studies the ME believes were “necessary” (make sure to use that exact word) which had not yet occurred. When the ME responds that “this test and that test and the other test should be done,” what you have now established through the ME’s own words is that the record is not properly developed. In a post-hearing letter, in which you must include the following phrase “I object to the ME’s testimony 12
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and offer additional comments,” you request that the ALJ arrange for all of the missing diagnostic studies which the ME said were “necessary.” Do you actually think the ALJ will order any of those diagnostic studies? Of course not! You hope that the ALJ ignores your request entirely so that you have actually 2 appeal issues for the Appeals Council or federal court. The first appeal issue is that you made a specific objection which the ALJ did not rule upon in violation of HALLEX I-2-658(C). The second appeal issue is that you have the substantive objection that the record was not properly developed based on the testimony of SSA’s own ME. 5) “From your review of the record, you would agree that the claimant has been compliant with the advice of his physicians, correct?” Obviously do not ask this question if the ME is likely to respond otherwise, given what you have already heard the ME say. If you get a “yes” to this question then the ME has effectively certified that your client has done everything they could have done to get better. This also tends to help your client’s credibility. 6) “It is correct that a doctor who has regularly treated and personally examined a patient over a period of years and has all of the patient’s medical records is in a better position to continue to treat that patient and assess their condition than a doctor who has never examined that patient, correct?” This is the key question which allows you to recreate the treating physician deference rule as a factual matter even though we have lost it in the regulations. Now you have gotten SSA’s own ME to create a mini-treating physician rule for purposes of this case. Notice that this question is exceptionally leading.
CONFERENCE DECONSTRUCTED Continued An alternative version of this question or a follow up in case the above question 6 did not go well is the following: “What is you medical specialty? (Wait for response, even though you already know the answer). Let’s assume, god forbid, you had cancer and you had been seeing an oncologist for many years who therefore knew you and your history rather well. Now let’s assume we had an allergist just quickly review some of your medical records in 45 minutes but never examine you. Whose medical advice would you rely on more heavily about your own cancer treatment and prognosis, that of the treating oncologist or that of the allergist who had never even examined you?” This question can be used when you find yourself in the now all too common circumstance of having an OB/GYN testify as an ME in an orthopedic case. You are attempting to show that the ME is not truly an expert and that the ME himself would not rely upon someone like themselves were their own health and treatment at issue. This question can cause ugliness, but I love to ask it. 7) “Now I understand already from your previous testimony that you do not agree with the treating source’s functional assessment. I already know that, so you do not need to repeat that again. That is NOT what my next question is about. My question is: you would agree that the treating source’s opinion is at least REASONABLE even though you disagree with it, correct?” You must emphasize the word “reasonable” in phrasing this question. Doctors are loath to refer to other physicians as being unreasonable. You are playing upon the social courtesies of the medical profession. You are also doing it in a leading manner after having built issue agreement, thus making it psychologically uncomfortable for the
ME to disagree with you. Sometimes you have to repeat the question twice as the ME often ignores the question and just reiterates what he believes the claimant’s restrictions to be. At that point, you must be more forceful in demanding that your actual question gets answered. At this point, you have gotten what you wanted out of the ME and there is no more need to be nice. Now you can aggressively cross with some very pointed and specific additional questions to try and revive treating physician opinion deference as a factual matter, even though it is now gone from the regulations. Here are those additional questions. 8) “In the medical community, it is not accepted practice to diagnose or assess a patient and prescribe medications without ever having actually examined the patient, correct?” The “prescribe medications” part makes it very hard for the ME to say no. This brings the “diagnose or assess” part along with it. You get a yes to both when it is actually likely only one part of the question that the ME truly wants to say yes to. 9) “You have never examined my client, correct?” Notice the order that these questions were asked them. If you invert questions 8 and 9, this cross-examination does not work well. Given the factual record you established with the above questions, the ME’s answer to this question is now incredibly helpful. 10) “It is correct that doctors do not write down everything in their progress notes, correct?” This is helpful in case the ALJ goes with the familiar attack that the progress notes do not support the treating physician’s opinion. NADR NEWS | THIRD QUARTER 2017
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CONFERENCE DECONSTRUCTED Continued 11) “Please do not refer to the record in responding to my next question. It is about your recollection. How many times has my client visited their treating physician in the past 2 years according to your recollection of the record?” This is an optional question designed to show the brevity of the ME’s review and the ME’s lack of knowledge as to the specifics of the case. It also can generate real confrontation. You have to decide whether to go there on a case by case basis. If you already got enough good stuff, you may not want to go with these additional questions. 12) “How many times have you testified as an ME at a hearing as witness called for and paid by SSA? And how many times have you testified at a disability hearing as a witness called by the claimant and not SSA?”
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The answers will be along the lines of “many” and “never.” These are optional questions which tends to work well with federal courts reviewing the record. They explore traditional bias issues that are often brought up in personal injury and workers compensation matters. These questions penetrate the federal court clerk brain well. Now what if this “reasonable” ME cross does not work? Who cares? You already had terrible ME testimony and were going to lose anyway. Again, you cannot lose a case twice. You know that the crosses of MEs you have done in the past have never gotten you anywhere. So it would have been pointless to repeat those ineffectual strategies. Even if my cross does not work every time, it will work sometimes, which is better than what you were doing before.
ADR SPOTLIGHT MICHAEL WENER Tell us about your representative business (size, client load, areas of focus, etc‌)? I joined the family law firm of Wener & Associates in January 1993 as a paralegal assisting with Social Security Disability claims. My office has been handling Social Security claims since 1979. We currently have over 400 Social Security claims as well as over 600 VA Disability claims. Besides myself, there are 2 attorneys and 2 support staff. How long have you been an ADR? Since 2012, soon after I passed the EDPNA test taken in December 2011.
How has the ADR designation benefited you? How has it impacted your professional growth? The ADR designation has spurred conversation from clients and potential clients as to what it means. I’m proud to tell them that not only have I been tested and vetted by The Social Security Administration, but that my designation shows my dedication to my clients and my practice. In what ways do you display/use your ADR designation?
Why did you choose to pursue an Accredited Disability Representative designation?
On my business cards and email signature.
I wanted to show my clients that I hold myself to a higher standard, to be more than just the minimum I had to be to represent them. Integrity and professionalism are paramount to being an effective and successful representative.
Tell us about one positive aspect of being an ADR that you would stress for members considering the designation? By holding the designation, it should help you gain the trust and confidence of your client and show them that they have chosen the right representative to assist them during the most difficult time of their lives.
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BOARD OF DIRECTORS 2017 - 2018
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President Philip Litteral, ADR Ashland, KY
Vice President C. Greg Cates, EdD., ADR Memphis, TN
Secretary Barbara Manna, ADR Pittsburgh, PA
Treasurer Michael Wener, ADR Memphis, TN
Director At Large Clifford Berkley, ADR Fullerton, CA
Director At Large Marilyn Hamilton, Esq. Atlanta, GA
Director At Large Christopher Mazzulli, ADR Baltimore, MD
Director At Large Mary Perry, ADR Rochester, NY
Director At Large Randy Persad, ADR Portland, TX
NADR NEWS | THIRD QUARTER 2017
NADR News is published by NADR and is the property of the National Association of Disability Representatives. Copyright 2016, NADR. The articles appearing in the NADR News do not necessarily reflect the opinions of NADR. The accuracy and content of each article is the responsibility of the individual writer.