Articles from prior issues of The Advocate

September/October, 1997

The Medical Improvement Standard: An Analysis and Discussion of Ideas for Improvement
Executive Summary

The paper reaffirms NADE’s support of the Medical Improvement Review Standard.

lThe paper reiterates concerns that disparate decision-making processes inevitably yield different results.

lThe POMS standard regarding the error exception to MIRS is more stringent than the statute and needs to be clarified.

lThe paper suggests an alternative decision-making sequence for CDRs and also suggests that the comparison point time period be lengthened; that medical “holds” be available for use with CDRs and that benefits of vocational therapy be removed as an exception to MIRS.

lThe paper suggests that all options for making MIRS and the CDR process viable be explored prior to consideration of abandoning it in favor of time limited benefits.

INTRODUCTION

Individuals who have been awarded Social Security disability benefits should be able to rely on the validity of the decision. They should expect that SSA will not terminate those benefits unless there is a change in their condition that would warrant termination. The purpose of the medical improvement (MI) standard is to safeguard against arbitrary termination. The public should be able to expect that the Social Security Administration (SSA) will administer the disability program in a cost-effective manner and that disability benefits will be paid only to those who meet the statutory definition of disability. It is widely perceived among our members that the medical improvement review standard (MIRS) generally satisfies the first expectation but often fails in the second. The purpose of this paper is to review the medical improvement standard and discuss selected suggestions for its revision. These changes, or other similar changes, will continue to safeguard beneficiaries against capricious action while removing barriers to terminating benefits to those individuals who are not truly disabled.

HISTORY OF THE MEDICAL IMPROVEMENT STANDARD

The first medical improvement standard, called the LaBonte principle with its origins in case precedent, was used from 1965 to 1975. In the early to mid-1970s, there was an explosion of beneficiaries entering the rolls. A General Accounting Office (GAO) study around that time concluded that 20% of those receiving benefits had never been (or were no longer) eligible. In response, SSA dropped the MI standard in 1976 to facilitate removal of those who no longer met the definition of disability. Beginning in 1981, SSA directed cessations with an unprecedented stringency which led to a public outcry. Eventually, after sustained public protest including moratoriums on continuing disability reviews unilaterally imposed by several states, Congress reinstated the MI standard with the passage of PL98-460 on October 9, 1984. A medical improvement standard was necessary and was established with excellent intentions. It was, however, partially based on an erroneous premise. The objective of continuing benefits for individuals whose medical condition has not improved relative to their capacity to engage in substantial gainful activity (SGA) is not only fair to disabled individuals but was the reasonable expectation of the public at large. But the assumption that all beneficiaries currently have a condition that precludes SGA is not correct. Disability examiners know that claims are sometimes allowed without correct interpretation of medical evidence or application of adjudicative standards. The present standard, as interpreted by SSA and enforced by federal quality assurance components, does not provide consistently adequate mechanisms for ceasing benefits in these claims. We believe that if data were made available regarding the number of claims ceased because the previous decision was erroneous, it would provide statistical validation of this contention. One aspect of the problem stems from the fact that the POMS is unclear about the standard of proof necessary to find error in the CPD decision and, thus, call into play the exception to medical improvement. There are three (3) frequently used standards of proof in administrative and judicial affairs.

lBeyond a reasonable doubt is the standard applied in criminal proceedings and is generally defined as the facts are such that the finder of fact has no reasonable doubt of the existence of the fact in issue.

lClear and convincing proof means proof by evidence that is clear, explicit, and unequivocal; evidence that is so clear as to leave no substantial doubt, or that is sufficiently strong to demand the unhesitating assent of every reasonable mind.

lPreponderance of the evidence is the standard that usually attends in disability proceeding. This means that the evidence, when weighted with that opposed to it, has more convincing force and the greater probability of truth (more probable than not). POMS (DI 28020.350D1) requires that there be “clear and compelling evidence” that a prior decision was in error before an exception to the medical improvement standard attends. The POMS does not define “clear and compelling” but the wording does suggest the clear and convincing standard defined above. It is generally believed that “clear and compelling” represents a higher standard of proof than preponderance of evidence, the standard customarily employed in disability proceedings and called for in the Federal Regulations. The statute and the regulations are silent as to the standard of proof required to find an exception to medical improvement. They require, simply, the existence of “substantial evidence”. In writing POMS, SSA modified the standard present in the CFR, i.e., substantial evidence, to a higher, more difficult standard. The tedious and unnecessary complexity of the POMS conveys the subtle message to decisionmakers that error exceptions should not be found. The instruction seems to lead the decisionmaker into a continuation of benefits for lack of medical improvement even when the comparison point decision was erroneously decided, and the regulations would support an error exception. In the recently concluded Process Unification Training, one of the clear and explicit messages was that POMS is not intended to, nor should it, modify the regulations in any way. Rather, the POMS should be clarified to ensure consistency with the regulation. We also believe that examples of the error exception should be cited in the POMS to illustrate situations involving substantial evidence error. In looking at the current application of MIRS, issues of substance and of perception become apparent. By the reference to substance we mean the discrepancy between the “error” standard contemplated by the regulations and the one set forth in POMS. The problem of perception relates to an apparent difference in interpretation of the MIRS from state to state and region to region. We conducted an informal poll in conjunction with our study which posed the following case scenario to individuals knowledgeable about MIRS, many of whom are currently adjudicating CDRs.

lAn applicant was allowed on the basis of glaucoma. The claimant had no visual field loss, 20/20 best corrected visual acuity and no additional physical or mental impairments. The written rationale stated that the claimant was disabled because “he would eventually go blind.”

lAt CDR the individual still has no field loss and 20/20 best corrected visual acuity. There are no additional impairments.

Approximately half the respondents felt there was a clear decisional error and, therefore, a cessation was appropriate. The other half felt that following DI 28020.350D, the case must be continued. Some reviewers felt that error could not be found because the decision-maker had not misread the evidence. He had noted the normal visual acuity and fields but had elected to make a favorable decision in spite of that. Others felt that error should be found since an adjudicative standard had been misapplied (POMS DI 28020.355), i.e., the decision-maker had substituted a personal standard-the individual will eventually go blind-for the proper standard that disability must be based on a finding that the individual has a medically determinable impairment that prevents (not will prevent or may prevent at a future day) engaging in substantial gainful activity. It is difficult to imagine a less ambiguous example. The discrepant interpretations, therefore, must result from ambiguous instructions and discrepant results of quality review. The respondents in the poll cited the quality review process as a factor involved in MIRS. RECOMMENDATIONS FOR CHANGE

To strengthen the medical improvement standard, NADE believes the current methodology should be reviewed. A revision to sequence, such as the one shown below, could make the error exception to MI meaningful while protecting beneficiary rights.

lDoes the claimant meet or equal a listing; if yes, continue, if no:

lDoes the claimant currently have an impairment(s) that prevents past relevant work and other work; if yes, continue, if no:

lApply MIRS. If no improvement, continue; if there has been MI related to the ability to work, cease; if the prior decision (comparison point decision or CPD) was clearly in error, prepare a rationale citing supporting evidence and forward the claim to the DDS Hearing Office or Quality Assurance component for an independent review.

lIf the independent review concurs that evidence in file shows the CPD was in error, the DHU will conduct a hearing. If, after the hearing, the hearing officer concurs that the CPD was in error, the DHO will forward the claim to a Federal component, such as OPIR, for a review and determination. The federal component would notify the claimant and the adjudicator, DDS or ALJ of the decision.

In this process the burden of proof would be on the adjudicator of the current claim to demonstrate that the prior decision was in error. The adjudicator in such a scenario would, at each point, be someone other than the person involved in the CPD. We believe that this alternative procedure illustrates the possibility of improving MIRS without subverting its purpose. NADE members who process CDRs have noted that many times cases are allowed using medical evidence that is more than a year old. Frequently these decisions are accompanied by a short diary meant to trigger a quick CDR. However, MIRS requires the decision-maker to compare the beneficiary’s baseline condition during the year or so prior to the date of the last favorable decision (CPD) with his/her current baseline condition. That comparison cannot be made if insufficient evidence exists at CPD. In such instances, MIRS mandates a continuation of benefits. NADE believes that the definition of comparison point evidence should be expanded to include the period 12 months prior to the date of the latest medical evidence that the decision-maker had at CPD-rather than the date of the decision itself. This would give the current decision-maker evidence to assess the recipient’s baseline condition at the CPD and compare it with the current baseline. This seems reasonable when the CPD was based on abuse of discretion, i.e., making a decision not based on reasonably current medical evidence. Further, the POMS directive to include evidence received after the CPD in assessing CPD severity should be deleted. The “medical hold or medical deferral” procedure is used at the initial level to better predict whether the twelve (12) month duration requirement will be satisfied. For example, when a claimant has a stroke or heart attack, DDS may defer adjudicating the case until three (3) months have passed after the acute event in order to obtain a better assessment of the claimant’s condition. A medical hold/deferral is not widely employed at the CDR stage. NADE believes that use of this procedure should be encouraged in CDRs. Beneficiaries may elect to have surgery at the time their claim comes up for review. Others may experience a fracture in the proposed month of cessation. In a cancer case one must allow three (3) years from the absence of all cancer, before ceasing benefits. A NADE member reported receiving a CDR on an individual with cancer three months before the three year period expired. Although the claimant’s condition was non-severe, benefits had to be continued because standard practice did not permit holding the case for the extra three months. Medical hold/deferrals could also be helpful when the cessation is upheld, but a new impairment occurs after cessation that requires evaluation for a new period of disability. Under the current regulations recipients who apply for and undergo vocational rehabilitation services place their benefits in jeopardy simply because of their initiative in seeking services. NADE believes that current CDR provisions should be revised to eliminate considering the benefits of vocational therapy to be an exception to medical improvement. This provision currently serves as a disincentive to beneficiaries working diligently to become rehabilitated and rejoin the work force. One problem with the current CDR process and, consequently, with the MIRS, has been the chronic inability of SSA to conduct CDRs on a timely basis. We have recently seen some positive movement in the direction of conducting more CDRs closer to the established diary/re-exam date. NADE applauds this move and supports SSA in its efforts to secure the needed resources to manage this workload in an efficient, cost-effective, accurate manner.

CONSIDERATION OF TIME-LIMITED BENEFITS

If the CDR process worked as it was originally envisioned, there would be no need to consider time-limited benefits. Only eligible claimants would be awarded benefits. CDRs would always be conducted timely. Cessations would be done and upheld on all those individuals who no longer met the statutory definition of disability. Claimants would know in advance when their eligibility would be reviewed, could count on that fact, and plan their lives accordingly. As anyone associated with the disability program knows the conditions described in the preceding paragraph do not reflect current reality. Time limited benefits have been proposed as one viable means to encourage claimants to obtain appropriate treatment and rehabilitation to re-enter the work force. Time limited benefits are also being proposed as a mechanism for changing the mind set of individuals so that most people receiving disability benefits would not expect a lifetime of payments. Rather, they would see the disability program as providing financial security while they engage in the business of recuperating and rehabilitation. NADE believes that refinement of the MIRS is preferable to time-limited benefits. If CDRs can be conducted in a timely manner, if genuine errors in decisionmaking can be corrected at the CDR level by changes in the MIRS, if disincentives to return to work can be eliminated, then NADE believes that a medical review standard can serve both the disabled population and the general public better than the wholesale changes time-limited benefits would entail for the program. Extensive study and analysis of data should be done prior to making such a major change in the disability program. Also, the CDR process should be fully utilized. Only after full implementation of the CDR program will it be possible to assess the efficacy of time limited benefits. A recent GAO study demonstrated little correlation between type of impairment or any other claimant characteristic and the estimated likelihood of benefit termination. Unless a high degree of correlation can be demonstrated between identifiable and measurable characteristic, NADE believes that time-limited benefits would be fair in its intent but unfair in its application since we cannot know in advance if any individual claimant’s condition will conform as a statistical model. Time-limited benefits, by requiring new applications for those whose benefit period has ended, could well increase the workload within the program.

CONCLUSION

NADE is on record as supporting the Medical Improvement Review Standard as a necessary safeguard for beneficiaries. We do see areas in which the standard can be refined and strengthened for the benefit of both the general public and disability recipients. With that said, however, NADE takes this opportunity to reiterate a position that we have articulated in many different arenas over time. The biggest challenge to the integrity of the program is disparate decision-making at various levels of appeals. It is imperative that decisionmakers throughout the process all make programmatically correct decisions on the basis of sound evidence, both medical and otherwise. Without consistent decisionmaking the program will continue to be in jeopardy. The National Association of Disability Examiners encourages an open review of the Medical Improvement Review Standard, considering factors such as those discussed above. We believe that, if adopted, those changes will enable the SSA to meet its dual responsibilities of safeguarding beneficiaries against capricious action and safeguarding the public’s monies against erroneous benefits being paid. Continuation of the current standard will only lead to further erosion of public trust and confidence in the program as well as skyrocketing costs to the taxpayer. Time-limited benefits should only be enacted after careful consideration of any evidence that may be produced that reflects positive outcomes for beneficiaries, the general population and/or the fiscal stability of the program.