On February 20, 2014 SSA issued a proposed Regulation in the Federal Register dealing with disclosure of adverse evidence. It appears that Social Security is reacting to the Wall Street Journal articles on Binder and Binder not disclosing evidence. This proposed Regulation puts representatives at risk in several ways: 1. It would compel us to disclose evidence adverse to our clients’ claim, a possible violation of your State’s Canons of Ethics; and, 2. It compels representatives to “help obtain” medical records – but at what level? at what cost? What if we get cases at initial or reconsideration and we feel the DDS should get and pay for the records? What if we know about an FCE obtained by an insurance company during a workers’ compensation case — now we will be forced to disclose that exam, even if it is adverse. The language does say “…we would clarify that we are not shifting our responsibility to develop the record to claimants’ representatives.” Anyone want to bet on how many ALJs will ignore that language?
This proposed Regulation would clearly force us to submit adverse or questionable records and reports we obtain from a treating physician. The proposed Regulation also modifies attorney-client privilege in two ways: 1. It extends attorney-client privilege to non-attorney representatives; and, 2. Reports or records obtained from a treating physician are not attorney work product and are not privileged – although our own handwritten notes are. The proposed Regulation also makes clear that “redaction” includes removal of pages.
Now in real life we never redact records and we do develop medical evidence for clients. I do think there are ALJs who will push the envelope and put some attorneys in positions of conflict with the State Ethical guidelines. There will also be issues regarding purchase of records and reports. This may also be used to punish the mentally ill or unsophisticated client that can not recall of of their past medical providers. This further erodes the distinction between attorney and non-attorney representatives. Here is the link: http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03426.pdf.