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Title II — Program integrity: Reforming standards and procedures for disability hearings, medical evidence, and claimant representatives

S. 3003 · 113th Congress · Dec 11, 2014 · Lineage

II Program integrity: Reforming standards and procedures for disability hearings, medical evidence, and claimant representatives

Sec. 201 Elimination of reconsideration review level for an initial adverse determination of an application for disability insurance benefits

(a)
In general— Section 205(b) of the Social Security Act (42 U.S.C. 405(b)) is amended—
(1)
in paragraph (2), by striking “In any” and inserting “Subject to paragraph (4), in any”; and
(2)
by adding at the end the following:

“(4) Any review of an initial adverse determination with respect to an application for disability insurance benefits under section 223 or for monthly benefits under section 202 by reason of being under a disability shall only be made before an administrative law judge in a hearing under paragraph (1).”

(b)
Effective date— The amendment made by subsection (a) shall apply to initial adverse determinations on applications for disability insurance benefits under title II of the Social Security Act made after the date of the enactment of this Act.

Sec. 202 Deadline for submission of medical evidence; exclusion of certain medical evidence

(a)
Closing of record for submission of medical evidence— Section 205(b)(1) of the Social Security Act (42 U.S.C. 405(b)(1)) is amended—
(1)
by striking “The Commissioner of Social Security is directed” and inserting—

“(A) The Commissioner of Social Security is directed”

(2)
by adding at the end the following new subparagraph:

“(B)

“(i) Notwithstanding the last sentence of subparagraph (A), in the case of a hearing before an administrative law judge to determine if an individual is under a disability (as defined in section 223(d)) or a review of such a determination before the Appeals Council of the Office of Appellate Operations of the Social Security Administration, medical evidence (other than the evidence already in the record) shall not be received if the evidence is submitted less than 5 days prior to the date on which the hearing is held unless the individual can show that the evidence is material and there is good cause for the failure to submit it before the deadline, but in no case shall medical evidence be received if it is—

“(I) based on information obtained during the period that begins after a determination is made by an administrative law judge; or

“(II) submitted more than 1 year after a determination is made by an administrative law judge.

“(ii) At the request of an individual applying for benefits under this title, such individual's representative, or a disability hearing attorney (as defined in section 203(a) of the Protecting Social Security Disability Act of 2014), and for the purpose of completing the record, an administrative law judge may postpone a hearing to determine if the individual is under a disability (as so defined) to a date that is no more than 30 days after the date for which the hearing was originally scheduled if—

“(I) the request is made no less than 7 days prior to the date for which the hearing was originally scheduled; and

“(II) the party making the request shows good cause for why the hearing should be postponed.”

(b)
Exclusion of medical evidence that is not submitted in its entirety or furnished by a licensed practitioner— Section 223(d)(5) of the Social Security Act (42 U.S.C. 423(d)(5)) is amended—
(1)
in subparagraph (B), by striking “In” and inserting “Subject to subparagraphs (C) and (D), in”; and
(2)
by adding at the end the following new subparagraphs:

“(C)

“(i) An individual and, if applicable, such individual's representative shall submit, in its entirety and without redaction, all relevant medical evidence known to the individual or the representative to the Commissioner of Social Security.

“(ii) In the case of a hearing before an administrative law judge to determine if an individual is under a disability (as defined in paragraph (1)), the Commissioner of Social Security shall not consider any piece of medical evidence furnished by an individual or such individual's representative unless such individual and, if applicable, such individual's representative, certifies at the hearing that all relevant medical evidence has been submitted in its entirety and without redaction.

“(iii) For purposes of this subparagraph, the term relevant medical evidence means any medical evidence relating to the individual's claimed physical or mental impairments that the Commissioner of Social Security should consider to determine whether the individual is under a disability, regardless of whether such evidence is favorable or unfavorable to the individual's case, but shall not include any oral or written communication or other document exchanged between the individual and such individual's attorney representative that are subject to attorney-client privilege or work product doctrine, unless the individual voluntarily discloses such communication to the Commissioner. Neither the attorney-client privilege nor the work product doctrine shall prevent from disclosure medical evidence, medical source opinions, or any other factual matter that the Commissioner may consider in determining whether or not the individual is entitled to benefits.

“(iv) Any individual or representative who knowingly violates this subparagraph shall be guilty of making a false statement or representation of material fact, shall be subject to civil and criminal penalties under sections 208 and 1129, and, in the case of a representative, shall be suspended or disqualified from appearing before the Social Security Administration.

“(D) The Commissioner of Social Security shall not consider any evidence furnished by a physician or health care practitioner who is not licensed, has been sanctioned, or is under investigation for ethical misconduct.”

(c)
Effective date— The amendments made by this section shall take effect on the date of the enactment of this Act, and shall apply to applications for disability insurance benefits filed on or after that date.

Sec. 203 Non-adversarial disability hearing attorneys

(a)
In general—
(1)
Establishment— The Commissioner of Social Security shall establish disability hearing attorney positions within the Office of Appellate Operations of the Social Security Administration for the purpose of improving the quality, timeliness, and consistency of disability determinations by administrative law judges as described in this section. The Commissioner shall hire and employ such attorneys and other personnel as are necessary to carry out the responsibilities of disability hearing attorneys, as described in subsection (b).
(2)
Definition— For purposes of this section, the term disability hearing attorney means an attorney employed under this section.
(b)
Assignment of cases; responsibilities of disability hearing attorneys—
(1)
Assignment of cases— Each case that is scheduled for a hearing to determine if an individual is under a disability (as defined in section 223(d) of the Social Security Act (42 U.S.C. 423(d)) shall be assigned to a disability hearing attorney as soon as practicable.
(2)
Responsibilities of disability hearing attorneys— The disability hearing attorney assigned to a case under paragraph (1) shall—
(A)
develop the evidentiary record, and, if necessary, work with the officials that made the initial determination that the individual was not under a disability to understand why such determination was made;
(B)
in cases where the individual has representation, work with the representative to ensure that the record is complete prior to the hearing, and examine witnesses and present evidence to the administrative law judge during the hearing;
(C)
prior to the hearing, if the attorney finds that the evidence clearly establishes that the individual is under a disability, recommend that the administrative law judge make a determination that the individual is under a disability without requiring a hearing; and
(D)
after the hearing, if the attorney finds that the evidence clearly does not support the determination of the administrative law judge that the individual is disabled, recommend to the Appeals Council of the Office of Appellate Operations of the Social Security Administration that the Appeals Council review the determination on its own motion.
(c)
Qualifications and training— The Commissioner of Social Security shall ensure that disability hearing attorneys employed under this section are appropriately qualified and trained to understand relevant medical, vocational, and legal issues.

Sec. 204 Procedural rules for hearings

(a)
In general— Not later than 1 year after the date of the enactment of this Act, the Commissioner of Social Security shall establish and make available to the public procedural rules for hearings to determine whether or not an individual is entitled to disability insurance benefits under title II of the Social Security Act (42 U.S.C. 401 et seq.). These rules shall include those established in this Act as well as—
(1)
rules and procedures for motions and requests;
(2)
rules related to the representation of individuals in such a hearing, such as the qualifications and standards of conduct required of representatives;
(3)
rules and procedures for the submission of evidence;
(4)
rules related to the closure of the record; and
(5)
rules and procedures for imposing sanctions on parties for failing to comply with hearing rules.
(b)
Authority of administrative law judges To sanction claimant representatives— Section 206(a)(1) of the Social Security Act (42 U.S.C. 406(a)(1)) is amended by inserting after the fifth sentence the following: “The Commissioner of Social Security shall establish rules under which an administrative law judge may impose fines and other sanctions the Commissioner determines to be appropriate on a representative for failure to follow the Commissioner's rules and regulations.”
(c)
Effective date— Any rules adopted pursuant to this section or the amendment made thereby shall take effect on the date that is 6 months after the date of their publication and shall apply to hearings held on or after that date.

Sec. 205 Prohibiting attorneys who have relinquished a license to practice in the face of an ethics investigation from serving as a claimant representative

Section 206(a)(1) of the Social Security Act (42 U.S.C. 406(a)(1)), as amended by section 204(b), is further amended—
(1)
in the first sentence, by inserting “, and, in cases where compensation is sought for services as a representative, shall” before “prescribe”;
(2)
in the second sentence, by striking “Federal courts,” and inserting “Federal courts and certifies to the Commissioner that such attorney has never (A) been disbarred or suspended from any court or bar to which such attorney was previously admitted to practice or disqualified from participating in or appearing before any Federal program or agency, or (B) relinquished a license to practice in, participate in, or appear before any court, bar, or Federal program or agency in connection with a settlement of an investigation into ethical misconduct,”; and
(3)
in the third sentence—
(A)
by striking “may” each place it appears and inserting “shall”;
(B)
by striking “or who has been disqualified from participating in or appearing before any Federal program or agency” and inserting “, who has been disqualified from participating in or appearing before any Federal program or agency, or who has voluntarily relinquished a license to practice in, participate in, or appear before any court, bar, or Federal program or agency in settlement of an investigation into ethical misconduct”; and
(C)
by inserting “or who has voluntarily relinquished a license to practice in any court or bar in settlement of an investigation into ethical misconduct” before the period.

Sec. 206 Applying judicial code of conduct to administrative law judges

(a)
In general— Section 3105 of title 5, United States Code, is amended—
(1)
by striking “Each agency” and inserting

“(a) Each agency”

(2)
by adding at the end the following:

“(b) The Code of Conduct for United States Judges adopted by the Judicial Conference of the United States shall apply to administrative law judges appointed under this section.

“(c) If, in applying a standard of conduct to an administrative law judge appointed under this section, there is a conflict between the Code of Conduct for United States Judges and any other law or regulation, the stricter standard of conduct shall apply.

“(d) Pursuant to section 7301, the President may issue such regulations as may be necessary to carry out subsections (b) and (c).”

(b)
Limitation on regulatory authority— Section 1305 of title 5, United States Code, is amended by striking “3105” and inserting “3105(a)”.

Sec. 207 Evaluating medical evidence

(a)
In general— Not later than 1 year after the date of the enactment of this Act, the Commissioner of Social Security shall ensure that all administrative law judges within the Office of Disability Adjudication and Review of the Social Security Administration receive training on how to appropriately evaluate and weigh medical evidence provided by medical professionals.
(b)
Opinion evidence— Section 223(d)(5)(B) of the Social Security Act (42 U.S.C. 423(d)(5)(B)), as amended by section 202(b), is further amended by adding at the end the following new sentences: “In weighing medical evidence, the Commissioner of Social Security may assign greater weight to certain opinion evidence supplied by an individual's treating physician (or other treating health care provider) than to opinion evidence obtained from another source, but in no circumstance shall opinion evidence from any source be given controlling weight.”
(c)
Health care providers supplying consultative exams—
(1)
In general— Beginning 1 year after the date of enactment of this Act, in determining whether an individual applying for disability insurance benefits under title II of the Social Security Act is disabled, the Commissioner of Social Security shall not consider medical evidence resulting from a consultative exam with a health care provider conducted for the purpose of supporting the individual's application unless the evidence is accompanied by a Medical Consultant Acknowledgment Form signed by the health care provider who conducted the exam.
(2)
Medical Consultant Acknowledgment Form—
(A)
Definition— As used in this subsection, the term Medical Consultant Acknowledgment Form means a form published by the Commissioner of Social Security that meets the requirements of subparagraph (B).
(B)
Requirements— The Commissioner of Social Security shall develop the Medical Consultant Acknowledgment Form and make it available to the public not later than 6 months after the date of enactment of this Act. The contents of the Medical Consultant Acknowledgment Form shall include—
(i)
information on how medical evidence is used in disability determinations;
(ii)
instructions on completing a residual functional capacity form;
(iii)
information on the legal and ethical obligations of a health care provider who supplies medical evidence for use in a disability determination, including any civil or criminal penalties that may be imposed on a health care provider who supplies medical evidence for use in a disability determination; and
(iv)
a statement that the signatory has read and understands the contents of the form.
(3)
Penalties for fraud— In addition to any other penalties that may be prescribed by law, any individual who forges a signature on a Medical Consultant Acknowledgment Form submitted to the Commissioner of Social Security shall be guilty of making a false statement or representation of material fact, and upon conviction shall be subject to civil and criminal penalties under sections 208 and 1129 of the Social Security Act and, in the case of a representative, shall be suspended or disqualified from appearing before the Social Security Administration.
(d)
Symptom validity tests—
(1)
In general— For purposes of evaluating the credibility of an individual's medical evidence, an administrative law judge responsible for conducting a hearing to determine whether an individual applying for disability insurance benefits under title II of the Social Security Act or for monthly benefits under section 202 of such Act by reason of a disability may require the individual to undergo a symptom validity test either prior to or after the hearing.
(2)
Weight given to SVTs— An administrative law judge may only consider the results of a symptom validity test as a part of an individual's entire medical history and shall not give controlling weight to such results.
(e)
Evidence obtained from publicly available social media— For purposes of evaluating the credibility of an individual's medical evidence, an administrative law judge responsible for conducting a hearing to determine whether an individual applying for disability insurance benefits under title II of the Social Security Act is disabled shall be permitted to consider information about the individual obtained from publicly available social media.
(f)
Regulations related to evaluating medical evidence— Not later than 1 year after the date of enactment of this Act, the Commissioner of Social Security shall promulgate rules and regulations to carry out the purposes of this section, including regulations relating to when it is appropriate for an administrative law judge to order a symptom validity test or to consider evidence obtained from publicly available social media.

Sec. 208 Reforming fees paid to attorneys and other claimant representatives

(a)
In general— Not later than 1 year after the date of enactment of this Act, the Commissioner of Social Security shall establish rules and regulations relating to the fees payable to representatives of individuals claiming entitlement to disability insurance benefits under title II of the Social Security Act (42 U.S.C. 401 et seq.). Such rules and regulations shall—
(1)
require representatives to account for the work performed with respect to a case, whether or not there is a valid fee agreement between the representative and the individual; and
(2)
prohibit a representative from being reimbursed by the Social Security Administration for travel expenses related to a case.
(b)
Review of highest-Earning claimant representatives—
(1)
Review— Not later than 1 year after the date of enactment of this Act and annually thereafter, the Inspector General of the Social Security Administration shall conduct a review of the practices of a sample of the highest-earning claimant representatives to ensure compliance with the policies of the Social Security Administration. In reviewing representative practices, the Inspector General shall look for suspicious practices, including—
(A)
repetitive language in residual functional capacity forms;
(B)
irregularities in the licensing history of medical professionals providing medical opinions in support of a claimant's application; and
(C)
a disproportionately high number of appearances by a representative before the same administrative law judge.
(2)
Report— Not later than December 1 of each year in which a review described in paragraph (1) is conducted, the Inspector General of the Social Security Administration shall submit a report containing the results of such review, together with any recommendations for administrative action or proposed legislation that the Inspector General determines appropriate, to the Committees on Finance and Homeland Security and Government Affairs of the Senate and the Committees on Ways and Means and Oversight and Government Reform of the House of Representatives.
(c)
Applicability of the Equal Access to Justice Act— Section 205 of the Social Security Act (42 U.S.C. 405) is amended by adding at the end the following new subsection:

“(v) Sections 504 of title 5 and 2412 of title 28, United States Code (commonly known as the “Equal Access to Justice Act”), shall not apply to—

“(1) any review under this title of a determination of disability made by the Commissioner of Social Security; or

“(2) if new evidence is submitted by an individual after a hearing to determine whether or not the individual is under a disability, judicial review of a final determination of disability under subsection (g) of this section.”

Sec. 209 Strengthening the administrative law judge quality review process

(a)
In general—
(1)
Review— Not later than 1 year after the date of enactment of this Act and annually thereafter, the Division of Quality of the Office of Appellate Operations of the Social Security Administration shall conduct a review of a sample of determinations that individuals are entitled to disability insurance benefits by outlier administrative law judges and identify any determinations that are not supported by the evidence.
(2)
Report— Not later than December 1 of each year in which a review described in paragraph (1) is conducted, the Division of Quality Review of the Office of Appellate Operations of the Social Security Administration shall submit a report containing the results of such review, including all determinations that were found to be unsupported by the evidence, together with any recommendations for administrative action or proposed legislation that the Division determines appropriate, to—
(A)
the Inspector General of the Social Security Administration;
(B)
the Commissioner of the Social Security Administration;
(C)
the Committees on Ways and Means and Oversight and Government Reform of the House of the Representatives; and
(D)
the Committees on Finance and Homeland Security and Government Affairs of the Senate.
(3)
Definition of outlier administrative law judge— For purposes of this subsection, the term outlier administrative law judge means an administrative law judge within the Office of Disability Adjudication and Review of the Social Security Administration who, in a given year—
(A)
issues more than 700 decisions; and
(B)
determines that the applicant is entitled to disability insurance benefits in not less than 85 percent of cases.
(b)
Mandatory continuing disability review—
(1)
In general— The Commissioner of Social Security shall ensure that, not less than 6 months after receiving a report described in subsection (a)(2), every determination of entitlement found to be unsupported by the evidence is in the process of being reviewed under section 221(i)(1)(B) of the Social Security Act (as amended by section 102(b)(1)).
(2)
Conforming amendment— Section 221(i)(1) of the Social Security Act (42 U.S.C. 421(i)(1)), as amended by section 102(b)(1), is further amended in subparagraph (C) by inserting “or under section 209(b) of the Protecting Social Security Disability Act of 2014” before the period.

Sec. 210 Permitting data matching by Inspectors General

Clause (ix) of section 552a(a)(8)(B) of title 5, United States Code, is amended by striking “the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services” and inserting “the Inspector General of an agency, or an agency in coordination with an Inspector General”.

Sec. 211 Accounting for Social Security Program Integrity Spending

Amounts made available for Social Security program integrity spending by the Social Security Administration for a fiscal year shall be—
(1)
included in a separate account within the Federal budget; and
(2)
funded in a separate account in the appropriate annual appropriations bill.

Sec. 212 Use of the National Directory of New Hires

Beginning with the date that is 1 year after the date of the enactment of this Act, the Commissioner of Social Security shall consult the National Directory of New Hires established under section 453(i) of the Social Security Act (42 U.S.C. 653(i)) in determining whether any individual who submits an application or reapplication for disability insurance benefits under title II of the Social Security Act or for monthly benefits under section 202 of such Act by reason of a disability is able to engage in substantial gainful activity.