Improving the Integrity of Disability Evidence Act of 2015- Why “Good Cause” may become even more important

This week, Social Security Subcommittee Chairman Sam Johnson (R-TX) introduced the Improving the Integrity of Disability Act of 2015. The bill’s purported intention is to ensure that disability determinations only use medical evidence from “reputable sources.” In a press release, Chairman Johnson provided:

“Hardworking American taxpayers expect that honest information is used when making disability determinations. …It’s just common sense to say if you can’t participate in Medicare, Social Security can’t consider your medical evidence. Americans want, need, and deserve a fraud-free disability program.”

Naturally, the prospect of curtailing the evidence available for claimants will draw ire from disability representatives and advocates. A reading of the bill’s text should calm some of the expected furor. The bill bars consideration of evidence from only three sources:

  1. providers convicted of a felony under section 208 or section 1632 of the Act, which largely criminalizes fraudulent representations made by medical providers,
  2. providers excluded from participation in Federal health care programs under section 1128 of the Act, which targets providers convicted of program-related
  3. crimes, patient abuse, health care fraud, and controlled substance felonies, and
  4. providers subject to civil damages imposed under section 1129 of the Act, which covers the submission of false evidence.

So at first glance this measure doesn’t seem so bad. Opinions from fraudulent doctors aren’t likely to garner substantial weight in disability determinations anyway. But as always, the devil seems to be in the details.

In an effort to reign in disability fraud, the bill’s texts overreaches and fails to provide explicit safeguards from prohibiting consideration from what would normally be considered good and reliable evidence. The bill has no timing restrictions which consider when the medical evidence was generated as opposed to when the provider is convicted. Also, the sections cited by the bill don’t only cover fraudulent activity that would automatically call into question the veracity of the provider’s medical evidence.

Let’s consider two hypothetical situations. In the first, Mary is a school teacher who injures her back in a car accident in 2009 and was first seen by a local emergency care clinic. After the accident Mary tries to continue teaching on a restricted basis but eventually finds out she cannot and files for disability. While her claim is pending in the administrative process, the emergency care clinic mistakenly discloses patient social security numbers and is convicted of a felony under section 208 of the Act. In the second hypothetical, Tom is a police officer who develops debilitating headaches. Tom goes to a radiologist for a brain MRI which reveals he has a massive tumor. Unbeknownst to Tom, the radiologist has a side job as a pot dealer and is subsequently convicted of felonious distribution of a controlled substance. In both situations, the proposed legislation will preclude the consideration of pertinent medical evidence through no fault of the disabled claimant. Mary will not be able to use the emergency care clinic visit to establish her alleged onset date. Tom will not be able to use what would otherwise be considered a completely objective examination.

At present, the only limitation found in the proposed legislation is that evidence may be considered “for good cause as determined by the Commissioner.” One would certainly hope that the above situations would fall into the definition of “good cause,” but without explicit legislative direction disability claimants run the risk of having good and reliable evidence excluded for reasons completely outside of their control. As a result, if the proposed legislation passes, good cause findings may become even more important.