Many media sources have been harshly criticizing President Trump for proposed changes to the medical review process for individuals receiving Social Security benefits because of a disabling condition. This is the primary area of law I practice, and the fears promoted by the media are entirely off base. The comment period is ongoing through the end of January. I commented as follows:
I am a representative who has made approximately 4,000 appearances before an ALJ to support claimant’s receiving disability benefits. The proposed MIL category might be helpful for encouraging claimants to seek medical treatment. However, the 5 month waiting period and additional 2 year wait before Medicare pendant benefits is a factor in claimants seeking medical treatment as it improves the availability of medical care. Rather than a 2 year review, a better timing mechanism may be 6 months after Medicare has come into effect.
Another possible consideration is having the ALJ declare in the decision what review category is being assessed. The intent of adding the MIL category is to promote medical treatment and lead to medical recovery. If the claimant is unaware of when the pending review will occur the new medical review category fails its purpose as the claimant does not feel the sense of urgency to receive medical treatment to achieve medical recovery.
Adding the review category in the decision is a de minimis burden on the Administration. It’s simply an additional sentence at the end of the decision stating Medical Review Category <INSERT CATEGORY> is recommended.
While the proposed timing and lack of notification in the process may erode the effectiveness of the change the actual change should be beneficial. However, the change raises a bigger question – what is the appropriate public policy behind the awarding of disability benefits?
With the proposed change the review categories will be:
|Diary category||Current policy||Proposed policy|
|MIE||6-18 months||6-18 months (unchanged).|
|MIP||3 years||3 years (unchanged).|
|MINE||5 to 7 years||6 years.|
MI is medical improvement, and the categories are Expected, Likely, Possible and Not Expected. Once an individual is deemed disabled benefits continue until medical improvement has occurred. Unless there’s a natural process that occurs (such as a bone mending) it’s possible for a person to not receive appropriate medical care until after the review period has passed. This means that the individual would continue to receive benefits until the next review occurs.
The reason for lack of treatment can range from desire to stay on disability, to inability to afford treatment (Medicare does not attach until 29 months after the disability began), to inability to receive treatment (such as cardiac clearance is denied or a single parent’s inability to care for small children during a surgical recovery period.) Right now the public policy is combination of determination of benefits (to help those in need) and possible medical improvement (to prevent benefit abuse.) This policy helps provide assistance to those in need, but is not focused on returning the individual to the workforce. Although some effort is made to assist individuals who want to return to the workforce (such as the Ticket to Work program) these efforts are directed to helping individuals who have an impairment find work they can do despite the impairment.
The proposed change, albeit coarse grained, is a different public policy. The proposed change is geared towards restoring health. A focus on restoring health opens up a wider range of vocational opportunities for the individual. Helping those in need is an admirable goal. However, the individual and society are both better served when the individual is able to return to the workforce. The individual not only benefits from the inherent dignity of work, but they also have more disposable income which leads to more opportunity for a higher quality of life. Society benefits from both the cessation of the economic outlay in paying benefits to the individual as well as from the economic activity generated by the individual. This latter public policy consideration needs more exploration and should be a part of any plan to “save” the system from financial insolvency.
For more information see:
Proposed Rule Change