Commissioner Astrue Suspends Five Day Rule

March 1, 2008

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

The Social Security Administration’s (SSA) proposed regulatory changes to the appeals process, described in the November 2007 edition of the Disability Law News, have met with strenuous objections from the advocacy community, as well as from members of Congress.  Comment letters from Empire Justice and NOSSCR (the National Organization of Social Security Claimants’ Representatives) are available at www.empirejustice.org/policy-advocacy/disability-benefits.html. 

First and foremost among the criticisms have been those challenging the proposed changes involving submission of evidence.  The regulations would have mandated that all evidence be submitted to the ALJ (Administrative Law Judge) five days before the scheduled hearing.  Only limited exceptions to the five-day evidence submission restriction would exist; otherwise, the record would be closed.  Similar draconian record closure provisions were proposed at the Appeals Council level (to be renamed the Review Board).

In response to the outcry, SSA Commissioner Michael Astrue announced on January 29, 2008, that he was suspending implementation of some of the more controversial aspects of the proposed rules, including the five-day rule.  Astrue’s letter to Congress announcing this development is available as DAP #477.  In his letter, the Commissioner reiterated his belief that changes like the proposed five-day rule would be an important step toward holding hearings with complete medical records, and in turn, helping to reduce the backlog of appeals.  He acknowledged, however, the legitimate concerns raised by advocates regarding the difficulty of obtaining records in a timely manner. 

The Commissioner expressed his concern about these delays, and attached to his letter copies of letters that he had written to the American Medical Association and the American Hospital Association about delays in processing claimants’ requests for records.  In the letters, Commissioner Astrue reminds the leaders of the two associations that federal and state laws provide claimants with an absolute right to prompt access to their medical records.

Advocates should be aware that the federal law to which Astrue refers is the infamous HIPAA (Health Information Portability and Accountability Act). See 45 CFR §164.524(b)(2)(i)&(ii), which provides that a “covered entity” under HIPAA must respond to a request for records within thirty days.  There are a number of provisos, including one automatic thirty day extension.  Although there are significant monetary penalties for violations of this and other HIPAA provisions, enforcement lies with the Department of Health and Human Services. 

New York law has even stricter mandates.  See NY Pub. Health Law Sec. 18(2) and NY Ment. Hyg. Law Sec. 33.16(b), which give providers only ten days to act on written requests for access to patients' own records.  Again, however, enforcement is cumbersome at best.  Advocates should nevertheless consider reminding providers of these laws when requesting records.  A sample request is available as DAP #478.