Check Out Your CEs

January 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

Consultative examiners (CEs) hired by SSA (Social Security Administration) can sometimes break – or occasionally – make a case. Just who are these hired guns?  SSA’s regulations at 20 C.F.R. §§405.1519 et seq. & 416.919 et seq., govern when consultative examinations will be purchased and how they are conducted.  Per 20 C.F.R. §§404.1519g & 416.919g, they will be purchased only from a “qualified” medical source, which is defined as a medical source who is currently licensed in the Sate and has the training and experience to perform the type of examination or testing requested.  The regulations also set forth the parameters under which CEs conduct their examinations and complete their reports are also spelled out in the regulations.
 
But who exactly does SSA hire as CEs?  As advocates are aware, most in New York are employed by “corporations” that contract with the New York State Office of Temporary and Disability Assistance (OTDA), which runs the Division of Disability Determinations (DDD), to provide the services.  [As discussed on page five in this newsletter, a recent report by the GAO (Government Accountability Office) reveals that SSA has acknowledged difficulties in finding reliable CEs.] A recent case issued by the Appellate Division, Third Department, provides a glimpse into the workings of such contracts.  The case illustrates how difficult it was for OTDA to terminate such a contract with Main Evaluations, Inc., even after learning, among other things, that it was never informed that the corporation’s “founder” and chief medical officer was the subject of professional disciplinary proceedings brought by the Office of Professional Medical Conduct that had ultimately resulted in the suspension of his medical license.
 
OTDA had argued that it properly terminated the contract upon learning this information in 2002.  It asserted noncompliance with the terms of the contract, since Main, Inc., had falsely answered questions in the background questionnaires filled in as part of the bidding process as to whether any officers, directors, etc. were subject to investigations.  OTDA nonetheless had to defend against a lawsuit and appeal by Main, Inc., that included allegations by the plaintiff that it had been denied equal protection. The decision in Main Evaluations, Inc. v. State of New York, issued on December 18, 2008, is available at http://decisions.courts.state.ny.us/ad3/Decisions/2008/504880.pdf
 
A case from the Western District of New York provides a different glimpse into the world of CE contractors.  In Hernandez v. Industrial Medicine Associates, 2006 WL 2669378 (W.D.N.Y. September 15, 2006), the plaintiff sued IMA, described in the lawsuit as a professional corporation providing disability evaluations, independent medical examinations, and other medical services, alleging employment discrimination.  Plaintiff had accused CE Melvin Zax, Ph.D., of sexual harassment at the workplace.  She complained to her employer, IMA, and had filed a complaint with Equal Employment Opportunity Commissioner (EEOC), which issued a “right to sue letter.” Zax regularly performs psychiatric and psychological examinations in Western New York.
 
The lawsuit involves plaintiff’s claim of a hostile work environment based in part on the sexual harassment and a retaliatory firing.  For the most part, it is not particularly relevant to the CE process.  It does, however, paint an interesting picture of the corporation.  Also, it is quite specific about Zax’s behavior toward the plaintiff, which could be useful the next time one of his reports appears in a claimant file.
 
And of course, there is the pending litigation against a CE in the New York City area that has been previously reported in these pages.  In Foxworth, et al v. Barnhart, 05-CV-3074 (NGG/VVP), plaintiffs alleged that SSA has improperly denied benefits to thousands of claimants based on the routinely haphazard, misleading and false consultative examination reports submitted by Dr. Mohammad Khattak, M.D., and his affiliated medical office, DHS.  The complaint contains a litany of allegations about Khattak, including his regular practice of “examining” claimants while they were fully clothed.  Khattak is no longer acting as a CE.
 
So - the moral of these stories?   Advocates should try to learn as much as possible about the CEs whose reports appear in their clients’ files.  One useful website is www.DoctorScoreCard.com, which provides links to all fifty states licensing and professional misconduct agencies.  It covers a variety of medical specialties, including psychologists, nurse practitioners, and others, as well as medical doctors.  For New York State specifically, check out http://www.nydoctorprofile.com/welcome.jsp.                
 
Current licensure information in New York is also available at http://www.op.nysed.gov/opsearches.htm
 
It never hurts to check – who knows what will turn up!